E Pluribus Unum: Well Maybe Not Everybody Towards A Re-Examination Of Birthright Citizenship

These views are entirely personal and
do not, in any way, represent the views of BP America Inc. on any of the
subjects discussed in this essay.

Special thanks to Professor Lenni
Benson of New York Law
School for her
extraordinary research help and to D. Ray Mantle,
Esq. of Jenkens & Gilchrist,
P.C. for footnote style
correction and technical editing.
This article was first published in the April 1, 2006 issue of Bender's Immigration Bulletin (Vol. 11, No. 7) at page 307.

Dedication: This article is dedicated to Ludivina Garcia
and her parents who know full well the importance of birthright citizenship.

I. A MODEST
PROPOSAL

At a dinner party soon after the American Revolution, a
society matron asked BenjaminFranklin what kind of a government
the new nation had.The Sage of
Philadelphia is reported to have replied: “A republic Madame, if we can
keep it.” Well, keeping it is
what Americans have been about ever since. It has not been easy. More than a land or a people, America
is an idea and that idea has never stopped changing. Finding out for ourselves what kind of a
nation we are and what manner of people we have become has always been central
to the American experience.

Throughout the first century of our national life, there
was no definition of national citizenship[1];
this would not come until the Fourteenth Amendment that emerged from the
crucible of our most terrible war. The
Founding Fathers felt no need to explain a term they used quite freely.This is
hardly surprising for these were natural law theorists who instinctively
believed that the purpose of government was not to create rights but to protect
and preserve those that already existed. The reality of citizenship came not from
positive law, whether oral or written, but from nature and Nature’s God. [2]That may be one major intellectual reason
why the meaning of citizenship was left open for so long. Precisely because the Founders had this
implicit understanding, they were less concerned with defining what a citizen
is than in enumerating what rights a citizen has that a government should
secure. The Constitution required nine
years of citizenship to serve as a United States Senator and seven to be a
member of the House of Representatives.[3]In fact, Federalist opponents
successfully challenged the election of AlbertGallatin
to the U.S. Senate in 1793 precisely on this basis, namely lack of sufficient
citizenship. [4]One had to be a natural-born citizen or a
citizen at the time of the Constitution’s adoption to be either President
or Vice- President.[5]Rather curiously, the Constitution talks
about “citizens” and “natural-born” citizens, but never
tells us what either means or what the difference between the two might be.[6]Neither the notes of the Constitutional
Convention nor the Federalist Papers tell us what the Founding Fathers thought
citizenship meant or how they believed it should be defined.[7]

For a long time, it was commonly thought that virtually
anyone born in the United
States was a citizen, part of us. While this is still the case, more recent
interpretations of the Fourteenth Amendmenthave caused some to question the
legitimacy of birthright citizenship as an foundation of our identity. Recent polls found that, while most
Americans (69%) know about birthright citizenship, a majority (54%) do not feel
that the children of illegal aliens should benefit from it. [8]There is no direct holding by the
Supreme Court on this explosive question. 9/11 has, not surprisingly, given the
entire issue new life. While
birthright citizenship is part of the highest law of the land, it has somehow
become a poster child to its critics for illegality and abuse, a symbol of how
the undocumented take advantage of the American system. Those who clamor for immigration reform
invariably also advocate a narrowing of the common law rule itself.[9]

They argue for a theory of citizenship based not on
geography but consent, consent flowing from the individual to the nation and
back again. Under this
understanding of citizenship, the individual need not give his or her consent
and the nation is free to reject it. The applicant for admission must want to
offer complete allegiance to the United States and be wholly capable
of doing so. In turn, the nation
must agree to have the individual join it on a permanent basis no less worthy
of respect and participation than those who already belong. How such consent is to be expressed and how such acceptance
should be made manifest seem very much up in the air. The advocates of consent
tend to approach it as a one dimensional concept, yet it may be far more
complicated, and less certain, than that. It is unclear as to whether the
proffer or the acceptance can either be withdrawn or made conditional upon the
satisfaction of conditions precedent or subsequent. Using consent as
the test, can those whose very presence here is a continuing violation of our
most central immigration laws possibly join on an equal footing with those who
have come before? Who is to judge the sufficiency of consent and by what
standard? When even the most basic definitional
standards of national identity require interpretation and invite discussion or
disagreement, one senses the waters are deep with rapids ahead.

Yet, the lure of consent is
undeniable. This paradigm
has the virtue of being consistent with America’s revolutionary past
which involved a rejection of monarchy and the notion of permanent or perpetual
allegiance that went with it. It is
also aligned with the uniquely American view that citizenship may given up at
the will of the individual, that expatriation is the birthright of all free
people, the exercise of which may neither be hindered nor abridged. The issue is not whether historical
precedents exist for citizenship by consent, for they surely do, but whether
such precedents have anything to do with the reasons why Congress created the
Fourteenth Amendment and how the federal courts have interpreted it since then.
Beyond that, the exclusionary
possibilities inherent in consent must be considered and compared against the
demonstrable tendencies towards inclusion, certainty and the promotion of
social cohesion that the common rule law of citizenship based on birth within
the United States
has always exhibited. The creative tension between
consent and birthright citizenship is not only natural but actually enriches
our understanding of, and appreciation for, both. It is this combination of
individual liberty and social responsibility that has always informed American
citizenship and our understanding of it. The value of unity and cohesion, so
well symbolized and admirably achieved by the common law rule, is the perfect
counterpoint to the virtues of consent- intelligent choices voluntarily made
with full understanding of the consequences at issue and the interests at
stake. Consent and the common law need not be enemies. When seen in their true
and proper light, they become partners in the service of a larger and more
common purpose, an American citizenship that has meaning for the individual and
for the nation of which they are a part.

The Citizenship Clause of the Fourteenth Amendment is
deceptively simple: “All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United
States and of the State wherein they
reside.” [10]We know why Congress felt it necessary to
have such a definition; it was intended to overrule for all time the Dred Scott
decision, [11] perhaps
the most frontal attack ever made on birthright citizenship and one which reveals
the coercive potential inherent in any notion of citizenship based on consent. [12]However consonant with the American
liberal tradition, and with full awareness of its iconic status as Jefferson’s muse in the
Declaration, consent, when advanced as an organizing precept for civil society,
is not without serious risk. [13]Those who assault birthright citizenship
seek to replace it with a consent-based paradigm that would require the nation
to accept an expression of individual allegiance before citizenship can be
attained. While this is, in many
ways, consistent with the American understanding of allegiance as transferable,
rather than perpetual, it may not possess the inclusive and unifying power that
birthright citizenship has demonstrated through successive ways of migration
over the long course of American history. To the extent that consent serves to
narrow, rather than expand, the American family, a serious question arises as
to whether such an effect is faithful to the Fourteenth Amendment and the reasons
for its creation. Enacted to bring
order and stability, to end confusion as to who is a citizen and who is not,
the Fourteenth Amendment has done precisely that. Will this continue?

It is the jurisdictional element of the Citizenship Clause
that has served as the focal point of debate. What did Congress mean by these words? Former Attorney
General WilliamBarr
once argued that anyone who came to the United States subjected himself to
its jurisdiction by taking any action that had an effect here. [14]Is that it? If so, the words seem almost superfluous
in their lack of definition.Did they modify the scope of birthright
citizenship by serving to take away what the Amendment otherwise granted? If this was what Congress meant to do,
did it have the power to do so? If
this was not what the Framers meant to do, if birthright citizenship remains
wholly intact, why have such qualifier at all? Hence, the need to look a bit
further.Let’s see what we
find. Such an inquiry should be a
cautious one, remembering that jurisdiction is “a word of many, too many
meanings,” [15] with
“so many different uses that confusion ensues. [16]Where we come out may surprise us or
reaffirm what we have long felt and deeply believed.

It is the purpose of this essay to take a look at this
debate in the hope that some clarity of purpose may thereby emerge. Readers will search in vain for any
discussion about illegal migration as a serious national problem. Politicians and pundits must, and
doubtless will, decide for themselves and the rest of us if the Fourteenth
Amendment requires modification. The
goal here is a much more modest one: to re-examine the legal forces behind the
adoption of birthright citizenship and try to determine if it is the authentic
expression of the American legal tradition that gave it birth.

II. HISTORICAL
BACKGROUND

There are two ways to determine birthright citizenship. Jus soli says that one derives
citizenship according to the place of birth while jus sanguinus makes citizenship of the child follow that of the
parents, regardless of geography. The
English common law which is the foundation of American jurisprudence followed jus solis, with the exception of
children of foreign diplomats, themselves immune from US law, and children of a hostile
occupying army. [17]The earliest and most influential
articulation of jus solis dates back
to the reign of King James I in 1608 when Calvin’s
Case decreed that a subject born within the royal realm was entitled to
protection by the crown and owed allegiance to this same protector. It was the locale of such birth that Lord Coke saw as the
indissoluble link between sovereign and subject irrespective of parental
status. [18]The common law rule announced in Calvin’s Case “became the
basis for the view that the purpose and effect of the first section of the
Fourteenth Amendment must be to constitutionalize birthright
citizenship.” [19]All of the standard legal treatises of
the nineteenth century included Calvin’s
Case, a principal reason for its pervasive influence. [20]In a wholly unintended way, the very
breadth and depth of this impact may have served to retard attempts at a
federal definition of citizenship since the need for such legislative action
did not seem readily apparent. [21]

The fact of the American Revolution, whose Declaration of
Independence flowed from the animating power of consent, and whose very purpose
and most central effect was to sever all permanent loyalties for a new people
in a new nation, raised a question to some as to whether automatic citizenship arising
out of perpetual allegiance between sovereign and subject could apply in a
republic or more properly belonged to the law of nations. [22]Critics of birthright citizenship argue
that no mutuality of allegiance or obligation can exist between the nation and
an illegal alien whose very presence here demonstrates an absence of obedience
to the laws of the land. [23]Precisely because there is such a firm
bond between the common law tradition inherited from England and birthright citizenship,
a rejection of the latter invariably requires a similar rejection of the
former, substituting in its place the civil law tradition that was more closely
identified with jus sanguinis.[24]In speaking of citizenship, Mr. Justice Story seemed
to place it most comfortably in the realm of international law when he observed
that

“Political rights do not stand upon the mere doctrines of municipal law applicable to ordinary
transactions but stand upon the general principles of the law of
nations.” [25]It is hardly surprising that opponents of
birthright citizenship would prefer international to common law since the
former ignores the place of birth and makes citizenship follow that of the
father or, if born out of wedlock, of the mother.[26]

It would be a mistake to think that the Fourteenth
Amendment introduced the concept of birthright citizenship. [27]In fact, such as rule has long been used
by American courts. “It was
beyond doubt,” Mr. Justice Gray told us in WongKim Ark,“that,
before the enactment of the civil rights act of 1866 or the adoption of the
constitutional amendment, all white persons, at least, born within the
sovereignty of the United States, whether children of citizens or foreigners,
excepting only children of ambassadors or public ministers of a foreign
government, were native-born citizens of the United States.” [28]What the Fourteenth Amendment did was to
give it constitutional form, thus placing it beyond future challenge. [29]Rather than creating a right that had not
previously existed, the Amendment built on the common law tradition. In 1830, the Supreme Court put it this
way: “Nothing is better settled at the common law than the doctrine that
the children even of aliens born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance
thereto, are subjects by birth.” [30]Equating English “subjects”
with American “citizens” the Court declared forthrightly that, as a
matter of common law, acquisition of citizenship at birth by children of alien
parents was wholly dependent upon the accident of geography. [31]Scholars believe that the 1844 New York case of Lynch
v. Clarke[32]“was the first case to decide the
issue of whether the U.S.-born child of an alien was a U.S. citizen.” [33]Perhaps most importantly, the Court rejected
the argument that the common law rule of birthright citizenship was an
antiquated feudal doctrine out of place in an independent republic. [34]While the Constitution and federal
statutes, including the Naturalization Act of 1790, did not define citizenship,
Lynch v. Clarke drew from such
silence an implicit acceptance of the common law position.[35]Even though both of Julia Clarke’s
parents never intended to live in the United States on a permanent basis, [36]
and despite her own election to remain in England as an adult, the New York
Chancery Court had no hesitation in deciding that she remained a citizen
because she was born here: “It is an indisputable proposition, that by
the rule of the common law of England, if applied to these facts, Julia Lynch
was a natural born citizen of the United States.” [37]

One of the main reasons why critics of birthright
citizenship contend that the children of illegal aliens born in the United
States are not American citizens is the fact that, in the late 1860’s,
when Congress debated and drafted the Fourteenth Amendment, there were no
illegal aliens in a national sense for the simple reason that Congress had not
yet placed any limits on immigration and would not do so until 1875. This assumes that, prior to the Civil
War, the states were not active in seeking to regulate those who sought
admission into their respective jurisdictions. In other words, while it is true that the
concept of illegal migration was not yet known on the federal level, this does
not necessarily mean that immigration controls were not a recognized exercise
of state authority. We are not used
to examining what ProfessorGeraldNeuman
has called this “lost century of immigration law,” but any
assumptions about what the Fourteenth Amendment was meant to achieve must take
this phenomenon into account. [38]

While the United
States may have maintained an “open
door” policy, the individual states must assuredly did not. The Senators and Congressman who created
the Fourteenth Amendment knew that. They did not regard controls on migration
as the exclusively federal responsibility it would later become.Even before adoption of the
Constitution, the Congress of the Articles of Confederation asked the states to
“pass proper laws for preventing the transportation of convicted
malefactors from foreign countries into the United States.” [39]Following the ratification of the
Constitution, additional state laws were passed along these same lines. [40]While modern immigration specialists
think of deportation as purely federal, there were nineteenth century
equivalent state law techniques known as banishment and conditional pardon that
states used to get rid of those they did not want. [41]State governors used their power of
conditional pardon to forgive convicted felons on condition that they leave the
state for a designated period of time. [42]Much as the current Immigration and
Nationality Act excludes those who are likely to become a public charge, nineteenth
century state poor laws also contained numerous immigration-related provisions. [43]

That is why the two ports who took in the most immigrants,
New York and Boston, were the ones most on guard to screen
out passengers who were most likely to become paupers. [44]In 1851, the Massachusetts legislature forced all
shipping companies and land carriers to support or remove any foreign passenger
who went on the dole within one year of arrival. [45]As the Irish potato famine took hold and
Irish migration to Massachusetts
surged in the 1850’s, state laws were put in place to allow for prompt
removal of any impoverished newcomer to his native land.[46]New
York City officials were equally vigilant. New
York law required ship captains to report the names
and occupations of all passengers within twenty-four hours of arrival. How dissimilar is this from what airlines
and cruise lines have to do now?A
bond had to be provided to indemnify municipal authorities against the risk
that a passenger would become a pauper within two years.[47]In 1847, the New York legislature created a board of
Commissioners of Emigration who oversaw the inspection and treatment of
arriving passengers. After the
Supreme Court struck down the Massachusetts system of head taxes in The Passenger Cases,[48]
the New York legislature altered its practice of charging each alien arrival one
dollar in lieu of bond, but the Supreme Court struck down the voluntary option
after the enactment of the Fourteenth Amendment, thus helping to usher out the
era of state immigration law.[49]As early as 1796, Congress authorized
federal customs officials to cooperate in the enforcement of state quarantine and health laws. [50]No less an authority than Chief Justice JohnMarshall recognized that quarantine and
health regulation belonged rightly to the “immense mass of legislation
which embraces everything within the territory of a State, not surrendered to
the general government.” [51]Indeed, it was not until 1921, over fifty
years after the Fourteenth Amendment,
that New York
finally shut down all international quarantine functions, the last state to do
so. [52]Nor was immigration control by the states
restricted to health and safety.Several state bans on the entry of free blacks came after the victorious
slave revolt in Haiti
led by Toussaint L’Ouverture. [53]While undeniably racial in character,
such laws can also logically be viewed as immigration controls, not that
dissimilar from current federal policies that also seek to turn back Haitian
refugees. Antebellum Southern
restrictions on the movement of black seaman which placed the cost of their
lodging and care squarely on the vessel master until the left port primarily
reflected lurid fears of slave insurrection following the Denmark Vesey
conspiracy of 1822 in Charleston,
but they were more than that. Such
laws also angered foreign nations whose ships contained black crew members who
had to remain on board and could not mix or communicate with the local black
population.[54]

The Founding Fathers took away from Congress the power to
ban the importation of African slaves for the first twenty years of our
national existence.[55]After 1808, however, it was illegal for
anyone to bring African slaves into this nation. Despite that, they came and in large
numbers. In a very real sense,
notwithstanding the brutal and involuntary nature of their migration, these
African slaves were the nineteenth century equivalent to the large illegal
alien population of today. By the
time that Congress could act to choke off the international slave traffic,
nearly every state that still had slavery had already moved on its own to put in
place similar prohibitions. Even
after Congress acted, the state prohibitions still remained. [56]Since many of these state laws came from
areas that did not object to slavery per se, it is not too much of an
exaggeration to think of these as immigration restrictions although, like
similar immigration enforcement today, the commitment to their administration
was neither consistent nor continuous. There were even state restrictions in
place against interstate movement of slaves. The Supreme Court went so far as to
affirm a state criminal conviction for harboring a runaway slave under the
rationale that Illinois could prevent the entry of persons
“unacceptable” to it.[57]The criminalizing of unlawful
immigration status is hardly a new idea.

The conventional wisdom that the phenomenon of illegal
immigration belongs wholly to the late nineteenth and early twentieth centuries
needs to be re-examined. Had such
state regulation been more effective, perhaps contemporary observers would know
more about it.[58]Notwithstanding its limited impact, state
immigration regulations were an active presence before 1875 at a time when
immigration law has been accurately described as “a complex hybrid of
state and federal policy.” [59]The transition to exclusive federal
regulation of immigration took a lot longer in coming than most people today
realize. It was not until Congress
took the first steps to retard European migration [60]
that the Supreme Court invalidated state immigration controls as an undue
constraint on interstate commerce. [61]

III. The Civil Rights Bill
of 1866 and the Fourteenth Amendment

Critics of birthright citizenship argue that the
jurisdictional clause of the Fourteenth Amendment necessarily restricts the
application of birthright citizenship if it is to have any meaning at all. Otherwise, they contend, what good is
it?If everyone in the United
States is “subject to the jurisdiction” for citizenship purposes,
then the qualifier is so broad as to serve no purpose. [62]The purpose had to be, so the argument
runs, to exclude those who had no allegiance to the national community as a
whole, to the United States
in essence. [63]By contrast, friends of birthright
citizenship argue that “the constitutional law is clear—Congress
has no power whatsoever to deny U.S. citizenship to children born in the United
States to nonimmigrant or illegal alien parents,” [64]
and maintain that “subject to the jurisdiction” means nothing more
nor less than “actual subjection to the lawmaking power of the United
States,” [65] with
the exceptions recognized at common law, those being the “children of
foreign diplomats who were legally immune from domestic law and children born
to women accompanying invading armies.” [66]The original understanding of the
Fourteenth Amendment also excluded “children born as members of Indian
tribes which were separate self-governing societies over which Congress did not
exercise direct lawmaking authority.” [67]Where the two sides divide is over the
critical question of whether complete allegiance and informed consent is both
necessary and proper for jurisdiction to be invoked and citizenship to attach. In the hands of critics, consentbecomes the way that Congress qualified
the scope of birthright citizenship, thereby infusing the jurisdictional
language with a relevance that it otherwise would have lacked. [68]If one regards consent as “marking
an outer limit to the scope of the birthright citizenship principle,” [69]
how is that line of demarcation to be drawn?

The citizenship clause of the Fourteenth Amendment did not
emerge from a vacuum. Congress
wanted to elevate to constitutional stature precisely the very same definition
that President AndrewJohnson found so objectionable
when he vetoed the Civil Rights Bill of 1866: “All persons born in the United States, and not subject to any foreign
power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” [70]When the Senate first considered the
Civil Rights Bill, it lacked a definition of citizenship. This came on the initiative of Senator LymanTrumbull
of Illinois, Chair of the Judiciary Committee
and the Senate floor manager, who introduced an amendment declaring that
“all persons of African descent born in the United
States are hereby declared to be citizens of the United States.” [71]While this would have reversed DredScott,
which was, after all, the point, it would “have done so on the narrowest
possible ground.” [72]Trumbull and the Radical Republicans
wanted more and, on the very next day, before any vote could be taken on the
more modest version, he introduced what became the final text, that most
proudly provided the blessings of automatic citizenship to “all persons
born in the United States…without distinction of color” [73]
so long as they were “not subject to any foreign power.” [74]Critics of birthright citizenship who
contend that only the freedmen can lay claim to the protections of the Civil
Rights Bill of 1866, or its constitutional progeny, have to refute the
magnifying power of Trumbull’s
more expansive language.

Allegiance is the magic link, the nexus between
jurisdiction and consent. While
allegiance had certainly been mentioned by Lord Coke in Calvin’s Case, it was created by the fact that birth within
the realm meant that the sovereign possessed, and might therefore exercise,
power over the individual.[75]But to those who contend that the Civil
Rights Bill of 1866 and the Fourteenth Amendment narrowed,rather than
merely restated, the common law rule on birthright citizenship, it is consent
that provides a way to see how such agreement came to life and was made
manifest, consent on the part of the community and by the citizen. [76]When Senator JacobHoward
of Michigan
introduced the birthright citizenship clause as a modification to Section 1 of
the Fourteenth Amendment, a similar colloquy ensued as to its meaning. Once again, most Senators discussed it
largely with respect to Indians but one can glean selected comments that hint
at a wider frame of reference. In
the course of responding to Senator JamesDoolittle
of Wisconsin, Senator Trumbull revealed how he defined “subject
to the jurisdiction” of the United States: It meant “not
owing allegiance to anybody else.” [77]Senator Howard was of like mind, explaining that,
when he wrote the Citizenship Clause, it was with contemplation of a
“full and complete jurisdiction” by which he meant “the same
jurisdiction in extent and quality as applies to every citizen of the United States
now.” [78]The “jurisdiction” of which Senator Howard spoke was
to be “coextensive in all respects with the constitutional power of the United States.” [79]Senator GeorgeWilliams
of Oregon, a member of the Joint Committee on
Reconstruction and later Attorney General of the United
States, understood the jurisdictional clause to mean
“fully and completely subject to the jurisdiction of the United States.” [80]This then, to critics of birthright
citizenship, is what the jurisdictional gloss on the Fourteenth Amendment
really means, what it was intended to do and why Congress felt it important
enough to put there: add consent to the common law rule and thereby transform
it from a feudal appendage into a connection between the individual and the
government, an ongoing dialogue symbolized by citizenship of which it was the
highest and most complete expression.[81]It was almost as if the common law rule
was too modest, too reticent, too constricting a definition for such an exalted
status in such a triumphal nation. The
problem with such an understanding of jurisdiction is not that it lacks merit,
for indeed there is much here that merits serious and sober consideration, but
that no one has ever used jurisdiction in this way, nor does it seem that the
framers of the Fourteenth Amendment did so. If exclusive allegiance is the price of
deriving citizenship from one’s parents, who else but the children of
citizens could have a truly secure claim? Certainly not the children of lawful
permanent residents whose primary allegiance must remain to the country of
their birth. Use of the term
“complete jurisdiction” was aimed at excluding Native Americans
from the definition of citizenship. It was for this reason, and on that
basis, that the architects of the Fourteenth Amendment, most notably Senators
Trumbull and Howard, the Floor Managers in the Senate, opposed an amendment put
forward by Senator James Doolittle of Wisconsin who sought to graft on language
from the Civil Rights Bill of 1866 for the single and specific purpose of
making sure that “Indians not taxed” did not come within the
meaning of citizenship.[82]

The relevance of consent as a prism through which we
understand birthright citizenship depends upon what we think those who wrote
the Fourteenth Amendment were trying to achieve. It may not be entirely coincidental that
the same Congress which passed the Fourteenth Amendment, just one day before,
also passed the Expatriation Act, thus allowing Americans to give up their
citizenship if such was their election[83]. To some, the rejection of perpetual
allegiance also necessarily meant a rejection of the birthright citizenship
that went with it. There was no
distinction in the minds of such critics between the consent required to
relinquish citizenship and the consent required to get it in the first place. [84]The fact that a citizen must consent in a
knowing and voluntary manner, with due appreciation for all possible
consequences, to his or her loss of citizenship [85]
does not necessarily mean, however, that consent is also a necessary
precondition for the creation of such status. If Congress meant to chart a new course,
to break with legal tradition and place the acquisition of citizenship on a
bold and entirely new theoretical basis, then consent becomes a logical,
perhaps even the inevitable, organizing principle around which all else
revolves. No longer would the
common law serve as intellectual ballast for such a system; something else must
then be found to take its place and consent must then march forward, center
stage, to perform its essential role. Consent becomes necessary if one assumes
that the Fourteenth Amendment had a revolutionary purpose. [86]If we accept the primacy of consent as a
basis to define citizenship, then the argument against extending such
birthright to the children of illegal aliens whose birth in the United States results from their parents’
violation of United States
law is immeasurably strengthened. Under
such circumstances, it becomes difficult to contend with any logical
consistency that the nation has consented to their inheritance of such a
precious benefit. [87]But, if such was not the case, if the
framers were not plotting a course towards a brave new world, and sought not a
radical break from the past, but a forthright reaffirmation of its most basic
tradition and fundamental assumption which held that citizenship was
territorial in nature, then the need to plumb the depths of consent fades away.
That is what the debate over the
Fourteenth Amendment is all about.Since the conflict that gave it birth was
so radically transforming, it is hard for many to believe that the pre-eminent
constitutional symbol of its results could not but be animated by a similar
purpose. Was this the case? [88]

Senator Howard, who, as the author, should know what he
was trying to do, did not think he was marching off into uncharted territory;
to him, the citizenship clause broke no new ground: “This amendment which
I have offered is simply declaratory of what I regard as the law of the land
already, that every person born within the limits of the United States, and
subject to their jurisdiction, is by virtue of natural law and national law, a
citizen of the United States ….” [89]Senator Howard then went on to say that the
citizenship clause would not include “persons born in the United States who are foreigners, aliens, who
belong to the families of ambassadors or foreign ministers accredited to the
Government of the United
States, but will include every other class
of persons.” [90]Senator Morrill also felt that birthright
citizenship was a fundamental truism beyond reasonable challenge and not in
need of special or renewed justification; speaking in support of the Civil
Rights Bill of 1866, he left little room for doubt:

As a matter of law, does anybody deny here or anywhere that the
native born is a citizen, and a citizen by virtue of his birth alone?... the
grand principle both of nature and nations, both of law and politics that birth
gives citizenship alone gives citizenship of itself... Everywhere where the principles of law
have been recognized at all, birth by its inherent energy and force gives
citizenship. Therefore, this
amendment, although it as a grand enunciation … has no force or
efficiency as an enactment. I hail
it and accept it simply as a declaration.[91]

To the extent that the Fourteenth Amendment was
declarative, rather than creative, the power of the consent-based theory wanes
considerably. If Congress simply
constitutionalized what existed, then the integrity of the common law rule on
birthright citizenship remains wholly unaffected and entirely pristine in both
form and effect.[92]

The symbiosis between consent and allegiance does
introduce a new dynamic into the mental model of birthright citizenship that
the more stable, if less exciting, common law rule lacked. This has particular relevance for our
current debate over the relationship between the undocumented and the Fourteenth
Amendment. Here is why. If active and open allegiance is the
essential condition precedent to birthright citizenship, how is it possible for
an illegal alien, someone who’s very physical presence in the United States
depends upon a constant and continued ability to stay in the shadows, to
display such affection and obedience in an open and obvious fashion? Can such a person fully discharge all of
the necessary obligations of citizenship or, upon failing to do so, be subject
to sanction?[93]When Senator LymanTrumbull
spoke of “all persons born in the United
States and under its authority, owing allegiance to the United States,
are citizens without any act of Congress,” [94]
was he saying that the mere geographical accident of birth was no longer
enough?Had something changed? Would future citizens now be required to
display some manifestation of will, some expression of fealty, as a condition
precedent to joining the club? How
that was to be done, and under what circumstances was not clear, nor did Senator
Trumbull indicate what the nation had to do in response to such an expression
of allegiance, or even whether allegiance given could be refused, or perhaps
made conditional. Senator Trumbull had the
intellectual honesty to concede that “there is a difference of opinion
upon that subject.” [95]Was he speaking to reaffirm the common
law rule or leave it behind? Did he
seek to convince those who clung fast to birthright citizenship or those who,
like Chief Justice Taney, felt that people of color, even if free, could not
share in the privileges of membership?We do not know.We do know
that there was historical precedent for requiring a demonstration of loyalty
from those who wish to become American citizens. As far back at the Naturalization Act of
1795, applicants had to renounce their old allegiances and support the
Constitution.[96]The issue is not that the Senator Trumbull harkened
back to this tradition, but, rather, whether he sought to use it for new and
different purposes.

Perhaps, the beginning of an answer may emerge by asking
who among those born in the United
States would be unable to manifest the
allegiance that Senator Trumbull
saw as necessary for automatic citizenship. “We cannot,” answers Senator Trumbull,
“make a citizen of the child of a foreign minister who is temporarily
residing here.” [97]Now, this statement can be parsed in two
different ways. One understanding
brings it squarely within the traditional common law exception to birthright
citizenship for the children of diplomats who, by virtue of their diplomatic
immunity, are not subject to the jurisdiction of the United States. This is probably what Senator Trumbull meant,
but there is another interpretation that can be placed on it, namely one that
emphasizes the “temporariness” of the parent’s status
here.Why was this a problem? Was there a connection in Senator Trumbull’s
mind, in his understanding of what the Fourteenth Amendment was trying to
achieve, between the permanence of the parental connection and the allegiance
of the child? This seems to have
troubled Senator Trumbull who acknowledged that, after some pondering the
matter, he concluded that while “a sort of allegiance was due to the
country from persons temporarily resident in it,” [98]
this was not enough on which to base the wording of the Fourteenth Amendment
since, with reference to those with such a transitory tie to America, “we
would have no right to make citizens ... ” [99]Nor was Senator
Trumbull the only one to voice
such sentiments. Even strong
supporters of birthright citizenship, like Senator BenWade,
appear to have harbored similar doubts, to a greater or lesser degree. In responding to a question from Senator Fessenden of Maine as to whether a
child born here of parents temporarily in this country could rightly be
considered citizens, Senator Wade
did not think so: “The Senator says a person may be born here and not be
a citizen . . . . By a fiction of law, such persons are not supposed to be
residing here, and under that fiction of law, their children would not be
citizens of the United
States... I agree to that ...” [100]

Since the context in which such remarks were made was
principally one concerned with Indians under tribal authority and whether they
should be brought under the Amendment’s umbrella, it would be exceedingly
unwise to make too much of such asides or rip them out of their proper setting
in order to support or advance a contemporary critique of birthright
citizenship. That goes far beyond Senator Trumbull’s
far more cautious posture. Still,
there is a concern here with the quality of allegiance that some born in the United States
could have and that is worth noting, if only for the historical record. While it is far too much to say that Senator Trumbull was
rejecting birthright citizenship, a conclusion that likely would have
astonished him, it is fair to suggest that he was placing an interpretative
gloss on the common law rule that earlier observers had not applied to it.On balance, it seems most faithful to
the spirit of Senator Trumbull
and his colleagues to suggest that they “intended the amendment to
resolve not only the status of African-Americans and their descendants but
members of other alien groups as well.” [101]To suggest that the framing of the Fourteenth
Amendment was the constitutional expression of a conscious intent to reshape
the contours and context of the American understanding of citizenship, a
position that must be taken if one is to argue for the primacy of consent, is
to forget that the Radical Republicans in Congress saw their mission as one of
turning back the clock and reversing the whirlwind that Chief Justice Taney had
unleashed with Dred Scott:

The legislative history makes it very clear that the framers of
the Fourteenth Amendment were not trying to adopt a transformative new
conception of citizenship by consent. That was what the Supreme Court had done
in the famous Dred Scott decision,
excluding African-Americans from the jus soli rule on the ground that whites
did not consider them appropriate partners in the political community. The framers sought to overturn that
innovation, and to reaffirm on racially neutral ground the same principles that
had always governed American citizenship for persons of European descent. [102]

The people who created the Fourteenth Amendment were not
trying to create a brave new world; they were, instead, attempting to put HumptyDumpty
back together again.

IV. JUDICIAL
INTERPRETATIONS

Judicial interpretations of the Fourteenth Amendment can
be roughly divided into two distinct periods. The first lasted for thirty years until
1898 and emphasized the need for exclusive allegiance to the United States as the primary way to
define citizenship. It is this
period that critics of birthright citizenship point to as the correct
interpretation of original intent. The
second period of judicial interpretation began in 1898 and continues until the
present day. In this era, the
courts de-emphasized the need for exclusive allegiance and focused instead on
the jurisdictional effect of birth as a geographic fact. It is this second interpretation that has
clearly emerged as the dominant judicial understanding of what the Citizenship
Clause means. However, the
defenders of the earlier exegesis rightly point out that the Supreme Court has
never held, however frequently it has assumed in dicta, that the Citizenship
Clause extends so far as to shelter children whose parents are here in
violation of United States law. This
does not mean that such a reading of the Citizenship Clause may not be inferred
as a matter of law and logic, for clearly it can and has been. It does,
however, suggest that those who question such an inference are not wholly
outside the American judicial mainstream, however much they may occupy a
minority position.

A. The Minority Judicial View

Critics of birthright citizenship harken back to what they
fondly recall as a golden age of Fourteenth Amendment jurisprudence. They take heart in the fact that this
view was closest in time to the Amendment itself and therefore carries with it
the aura of authenticity. There are
two key Supreme Court cases that stand out as exemplars of this minority
judicial view: (a) The Slaughter House
cases, [103]and (b) Elk v. Wilkins. [104]In The
Slaughterhouse Cases, the Court noted in dicta that the disputed phrase “subject to the jurisdiction
thereof” was “intended to exclude from its operation children of
ministers, consuls and citizens or subjects of foreign states born
within the United States.” [105](emphasis added). In the latter decision,
far more important as an expression of this minority position, the Court
“denied citizenship to JohnElk, an Indian, because he did not
owe complete allegiance to the United
States.” [106]While it is very much of an open question
as to whether Elk v. Wilkins remains
good law, partly because its author Justice Horace Gray subsequently changed
his mind in Wong Kim Ark and partly
because the citizenship of the American Indian has long since been granted by
Congress [107], Elk v. Wilkins is grounded on the notion
of exclusive allegiance as the determining factor in the acquisition of
citizenship and, as such, provides a respectable intellectual pedigree for
subsequent critics of the majority judicial view.Speaking for the Court
in Elk v. Wilkins, Justice Horace
Gray found that the jurisdictional qualifier was designed to “put it
beyond doubt that all persons, white or black, and whether slaves or not, born
or naturalized in the United States, and owing no allegiance to any alien power,
should be citizens of the United States.” [108] (emphasis
added). Mr. Justice Gray went on to
define “subject to the jurisdiction” in a decidedly consensualist
fashion that still serves as a rallying cry against birthright citizenship:
“The evident meaning of these last words is not merely subject in some
respect or degree to the jurisdiction of the United States, but completely
subject to their political jurisdiction, and owing them direct and immediate
allegiance.” [109]Note that Justice Gray did not speak of
subjection merely to the laws of the United States, a position he would later
appear to adopt in Wong Kim Ark, but
spoke instead of allegiance to “political jurisdiction” which,
though wholly undefined, can legitimately be read as referring to a wider and
more all-encompassing obedience.

JohnElk was an Indian who had left his
tribe, moved to Omaha
and wanted to vote. There was no
question that he felt an allegiance to the United States and was willing to
submit himself to its complete jurisdiction, however that was defined. The only question, and the reason why the
Supreme Court did not let him vote, is that there was no evidence sufficiently
persuasive to indicate that “the United States accepted his surrender, or
that he has ever been naturalized, or taxed, or in any way recognized or
treated as a citizen by the state or by the United States.” [110]The language that Justice Gray spoke in Elk v. Wilkins was not one of automatic
citizenship conferred by the accident of geography, but, instead, a new and
different language, one filled with shared commitments and mutual obligations,
requiring both expressed fealty and unconditional acceptance, a language
pregnant with possibilities but short on absolute guarantees or settled
expectations; that John Elk wanted to be a citizen of the United States, that
he had no other home to go to, no other community to which he could now belong,
did not win the day: “To be a citizen of the United States is a political
privilege which no one, not born to, can assume without its consent in some
form.” [111]This is a private club that occasionally
opens its doors to new members, but not to everyone, and then only on its own
terms.

Judge Gray
was able to advance a consensual theory of citizenship partly because he
rejected a notion that he later accepted in Wong
Kim Ark, namely that jurisdiction for purposes of the Citizenship Clause
meant the territorial limits of the United States; they were one and
the same.[112]Since the Court in Elk v. Wilkins declined to honor the citizenship claim of a Native
American born in the United
States, why, critics contend, should the
Constitution recognize a similar claim of a child born here to alien parents
who, if anything, had a far more tenuous connection to this country? [113]After all, were they not also subject to
foreign powers? The key point, from
this perspective, is that the Supreme Court in Elk v. Wilkins “necessarily rejected the claim that the
phrase ‘subject to the jurisdiction’ of the United States meant merely
territorial jurisdiction as opposed to complete, political jurisdiction.” [114]Does Elk
v. Wilkins stand for the proposition that
exclusive allegiance to the United
States is required for automatic
citizenship?If so, how does
American law tolerate, as it most assuredly does even today, multiple
allegiances by children born in the United States to non-American parents who
are thereby able to diversify their citizenship identity by taking advantage of
both jus sanguinis and jus solis? [115]In the aftermath of the Fourteenth
Amendment, Justice Gray
had created a formidable ideological platform from which assaults against
birthright citizenship could be launched.[116]The fact that this was the first time
that the Court had sought to decode the Citizenship Clause gave this
interpretation enhanced luster.[117]

Elk v. Wilkins
has the distinct virtue of actually being about what the critics of birthright
citizenship use it for, namely how far the jurisdictional limits of the
Citizenship Clause can be stretched. This is not always, if ever, the case as
the prior discussion of Minor v.
Happersett and United States v.
Cruikshank reveals all too clearly.[118]A classic contemporary example of how a
case not about really about birthright citizenship can be used as a platform
for judicial jeremiads on this subject is the Seventh Circuit ruling of Oforji v. Ashcroft.[119]On its face, this dealt with an asylum
claim brought by a Nigerian woman charged with attempting to enter the United States
by fraud or willful misrepresentation in the absence of a valid visa. The Seventh Circuit affirmed the denial
of asylum by the Board of Immigration Appeals. That should have been the end of it, but,
in his concurrence, Judge RichardPosner reached out to swat down
the argument by appellant’s lawyers that her daughters, ages six and four,
had been born here and were consequently United States citizens. Armed with a short fuse and an agile pen,
Judge Posner
left little doubt as to where he stood on the controversy of birthright
citizenship for illegal aliens whose resolution was wholly tangential to the
case before him. Judge Posner urged
Congress to “rethink” the common law rule when applied to
“the children of illegal immigrants whose sole motive in immigrating was
to confer citizenship on their as yet unborn children.” [120]Judge Posner opined that this rule “makes
no sense” and cited as fact a charge by the Federation for Immigration
Reform (FAIR) that 165,000 children are born annually to mothers here
illegally.[121]After citing the Hamdi case in passing, Judge Posner went on to unburden himself of his
true feelings on the matter:

We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S.
citizenship on their future children. But the way to stop that abuse of
hospitality is to remove the incentive by changing the rule on citizenship . .
. . A constitutional amendment may be required to change the rule whereby birth
in this country automatically confers U.S. citizenship, but I doubt it ... Congress would not be flouting the Constitution if it amended the
Immigration and Nationality Act to put an end to the nonsense ... [122]

The reason to comment on Judge Posner’s editorial is not to support
or critique it, but to suggest that a serious discussion of birthright
citizenship and illegal aliens is too important to be relegated to the margins
of judicial commentary. Doing so
not only is objectionable to those who disagree but even more so to those who
are in alignment. This method of
casual analysis deprives the argument of the intellectual gravitas that it both
needs and deserves. There is a
larger point which sorely needs to be made, namely that, every time a case not
really about birthright citizenship is mischaracterized to condemn or champion
the common law rule, lawyers assume, not unnaturally, that birthright
citizenship lies outside the boundaries of legal scholarship and is solely a
policy issue for the political arena. This only serves to detract from the need
to examine it from a legal perspective, thereby making an open and honest
examination that much more difficult.

B.
The Majority Judicial View

Any and all attempts to exclude the U.S.-born children of
immigrants, whether temporary or permanent, from the sheltering arms of the
Fourteenth Amendment must contend with the Supreme Court’s landmark
ruling in United
States v. WongKimArk.[123]

Writing for the Court, Mr. Justice Horace Gray, the author
of Elk v. Wilkins, held that the U.S.-born
son of Chinese immigrants, who themselves were ineligible to naturalize under
the Chinese Exclusion Act,[124]
was a citizen of the United States by birth in San Francisco. [125]In a comprehensive, even exhausting,
review of the common law rule on birthright citizenship, Justice Gray concluded
that “nothing is better settled at the common law than the doctrine that
the children, even of aliens, born in a country while the parents are resident
there under the protection of the government, and owing a temporary allegiance
thereto, are subjects by birth.” [126]An expansive reading of the Citizenship
Clause must include all persons born in the United States, regardless of their
parents’ immigration status. [127]Justice Gray determined that, even though
the parents of Wong Kim Ark remained subjects of the Emperor of China, they
were “entitled to the protection of and owe allegiance to the United
States, so long as they are permitted by the United States to reside here; and
are ‘subject to the jurisdiction thereof’ in the same sense as all
other aliens residing in the United States.” [128]What is most notable, however, is the
fact that Justice Gray
rejected his own reasoning in Elk v.
Wilkins without really explaining why or how he had arrived at a different
understanding of the Citizenship Clause. After quoting at length from Elk v. Wilkins, he simply announces that
Elk “concerned only members of
the Indian tribes within the United States,
and had no tendency to deny citizenship to children born in the United States
of foreign parents of Caucasian, African, or Mongolian descent, not in the
diplomatic service of a foreign country.” [129]

What is striking here is the lack of any distinction in
the quality or character of allegiance that a citizen must manifest. There is no discussion of
“temporary” versus “permanent” allegiance, just as no
distinction is drawn between different types of jurisdiction that the nation
has or may exercise. Previously,
there had been much discussion over “complete or partial”
jurisdiction and between “territorial or political” jurisdiction;
not so here. Now, in Wong Kim Ark, geography is king and
jurisdiction follows the map:

The Fourteenth Amendment affirms the ancient and fundamental
rule of citizenship by birth within the territory, in the allegiance and under
theprotection of the country,
including all children here born of resident aliens, with the exceptions or
qualifications (as old as the rule itself) of children of foreign sovereigns or
their ministers, or born on foreign public ships, or of enemies within and
during a hostile occupation of part of our territory, and with the single
additional exception of children of members of Indian tribes owing direct
allegiance to their several tribes. The amendment, in clear words and in
manifest intent, includes the children born within the territory of the United States of all other persons, of whatever
race or color domiciled in the United
States. Every citizen or subject of another
country, while domiciled here, is within the allegiance and the protection, and
consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and
immediate, and, although but local and temporary, continuing only so long as he
remains within our territory.[130]

Critics of birthright citizenship have noted, and been
highly critical of, this change in direction, viewing it as a
highly-unfortunate byproduct of results-oriented jurisprudence. [131]A particular comment by Justice Gray does
reveal deep concerns about the practical and societal implications of reaching
at different result: “To hold that the fourteenth amendment of the
constitution excludes from citizenship the children born in the United States
of citizens or subjects of other countries, would be to deny citizenship to
thousands of persons of English, Scotch, Irish, German, or other European
parentage, who have always been considered and treated as citizens of the
United States.” [132]While Wong
Kim Ark may simply reflect a more mature understanding by Mr. Justice Gray
of the Citizenship Clause, as indeed seems to be the case, it would have been
helpful to all disputants in the controversy to know a bit more as to why he
had changed his mind.

What is not open to doubt is Justice
Gray’s conclusion that the
Fourteenth Amendment could not be interpreted in a fashion resulting in fewer,
not more, citizens: the “Fourteenth Amendment . . . has conferred no
authority upon Congress to restrict the effect of birth, declared by the
Constitution to constitute a sufficient and complete right to
citizenship.” [133]The Citizenship Clause is “intended
to allay doubts and to settle controversies which had arisen and not to impose
any new restrictions upon citizenship.” [134]While critics of birthright citizenship
may argue, as they do, that the purpose of the Fourteenth Amendment was to
reject the common law and fashion a new citizenship paradigm built on
allegiance and consent, Justice Gray took a more conservative view: “As
appears upon the face of the amendment, as well as from the history of the
times, this was not intended to impose any new restrictions upon citizenship,
or to prevent any persons from becoming citizens by the fact of birth within the
United States, who would thereby have become citizens according to the law
existing before its adoption. It is
declaratory in form, and enabling and extending in effect.” [135]

Critics of birthright citizenship rightly point out that
the parents of Wong Kim Ark, though they could never become citizens under the
law then in effect, were resident aliens of the United States and their presence
here was completely lawful. This is
not a case dealing with the children of illegal aliens. Nonetheless, the importance of this case
goes far beyond its specific facts. This is the flagship for birthright
citizenship whose influence has extended down through many subsequent decisions
until the present day. Not since Wong Kim Ark have federal courts
seriously questioned birthright citizenship or doubted the meaning of the
Citizenship Clause. [136]The reasoning of Wong Kim Ark, namely that the rights of children should not be
diminished by the status or conduct of their parents, has been extended by the
courts to the protection of children where citizenship is not an issue. Children born out of wedlock, for
example, can not be denied insurance for that reason. [137]Children of the undocumented are
entitled to a free public education. [138]Newborns of illegal alien mothers must receive
the same Medicaid coverage after birth in the United States as the children of
citizen mothers.[139]As the Supreme Court has made crystal
clear, equal protection extends to “all persons within the territory of
the United States,” [140] including
those whose presence here is subject to challenge. Precisely because the acceptance of Wong Kim Ark was, before 9/11, virtually
universal, because neither the courts nor Congress seriously questioned it or
sought to revisit the issue, we have never had any subsequent judicial scrutiny
that really examined what the decision said and whether the Court got it right.
The Court could have done this when
deciding Hamdi v. Rumsfeld, [141] where
Hamdi was born in Louisiana while his father
was working temporarily in the United States
as an L-1 intra-company transferee before returning to Saudi Arabia while Hamdi was still
a toddler. Hamdi did not return
again to the United States
before American military authorities brought him back here as an enemy
combatant. However, the Court
simply assumed that Hamdi was a citizen and offered no new insights into
birthright citizenship. Sadly,
however much we might agree or disagree with the wisdom or folly of such an
assumption, this was a chance not taken. Had the Court not taken the easy way out,
we might have learned some valuable lessons about whether, and to what extent,
birthright citizenship has a place in our post-9/11 world.

V. PROPOSALS TO
CHANGE BIRTHRIGHT CITIZENSHIP

Critics of birthright citizenship see this great gift as
an incentive for aliens to enter, or remain, in the United States in violation of US
immigration law. Numerous proposals
have been introduced in Congress over the past decade to curb this perceived
abuse. [142]These proposals are of three types: (1)
modification of the definition of citizenship as contained in the Immigration
and Nationality Act without any constitutional change; (2) a statutory revision
that takes effect only after a repeal of the Citizenship Clause in the
Fourteenth Amendment; and (3) a constitutional amendment that narrows the scope
of birthright citizenship.For many
years, until quite recently, it was felt that, precisely because the common law
rule had, by universal understanding, been enshrined in the highest law of the
land, only a structural revision of the Fourteenth Amendment itself would
suffice. This is still the dominant
view of those who think it is time for a change. However, there is a growing minority of
critics who now contend that a constitutional amendment may be preferable, but
is not mandatory. “There’s been recent
scholarship that says we can do it by statute,” notes pro-immigration Congressman JeffFlake of Arizona, “and we ought to try.” [143]The thinking here is that, precisely
because any attempt to amend the Constitution is so difficult, especially on
such a radioactive issue where public passions are at fever pitch on both
sides, Congress can and should invoke its powers of implementation or
enforcement under Section 5 of the Fourteenth Amendment. That theory makes change by statute
completely sufficient, thus rendering the arduous task of constitutional
modification wholly unnecessary. Needless
to say, such a theory has never been tried nor tested in the federal courts who
understandably may take a different view.

What unites all of these statutory proposals is the belief
that Congress can act to change the meaning of “subject to the
jurisdiction” as articulated by the Supreme Court in Wong Kim Ark and its progeny without doing any violence to the
integrity of the Citizenship Clause itself.[144]There is no one formula that fits all of
the legislative proposals. Each one
poses stubbornly persistent problems of definition which, precisely because of
the complexity of the subject, place an absolute premium on legislative draftsmanship.
It is not hard to figure out why
this is so. Rather than reflecting
an intellectual, ethical and societal consensus already achieved, these
statutory initiatives seek to impose a new definition of citizenship in the
absence of such agreement. Given
such a vacuum, even the slightest variation, the most minor textual
imperfection, can have momentous consequences, hence the need for utmost
scrutiny as a pretext for action. In America,fundamental change happens first and
then the Constitution recognizes it, not the other way around. Law symbolizes
values and beliefs, it rarely creates them. This is pre-eminently the story of
the Citizenship Clause whose very consistency and reliability has anchored the
meaning of the American experience for all those with the mind and heart to
share in it. To replace that with the
uncertainty of consent, never knowing who belongs and who does not, is to erode
the very rationale of the Fourteenth Amendment which sought to place beyond the
majority will of future generations the sum and substance of citizenship won at
such a high and bloody price. This is who we are and what we stand for. Here
there is no room for doubt. Beyond that, the more narrowly a statute is
drawn, the less flexibility it has to respond to any change in key facts. For this reason, to preclude the children
of non-resident aliens born in the United States from acquiring citizenship at
birth seems unduly narrow when one considers the fact that many of their
parents will, in time, become permanent residents and may already been in the
process of doing so.[145]

While there are common features to these statutes, there
are interesting, and potentially troubling, differences as well. House Bill 3938, the Enforcement First
Immigration Act of 2005, provides that, if a child is born in wedlock, a
matrimonial state that does not include common law marriage, [146]
either parent can be a United
States citizen or a lawful permanent
resident. However, if the child is
born out of wedlock, then things get dicier.If the mother has the green card or the US passport, then all is well; but, if the child
is unfortunate enough to be sired by a US citizen or lawful permanent
resident father, then there is no possibility for transmission of citizenship
under any circumstances. [147]Ironically, the child has a better
chance at deriving United States
citizenship, if born outside the United States under Section 309 of
the Immigration and Nationality Act [148].

Less troublesome from a constitutional perspective is the
gender-neutral approach typified by Congressman TomTancredo’s
(R-Colo.) Reducing Immigration to a Genuinely Healthy Total (RIGHT) Act of
2005. Section 201 of the RIGHT Act
limits birthright citizenship to a child at least one of whose parents was
either a United States
citizen or lawful permanent resident at time of birth.[149]Interestingly, such a formula does not
measure up to the “exclusive allegiance” standard embraced by many
critics of birthright citizenship for the simple reason that lawful permanent
residents remain a citizen of, and subject to, the country of their birth. They continue to travel on their non-U.S.
passports, pay taxes to a foreign country, vote in foreign elections, and
remain under a duty of allegiance to foreign powers.The RIGHT Act does have the virtue of
not conditioning the child’s claim to citizenship, or lack of same, on
the marital status of his or her parents, something obviously beyond their
control and for which they should neither be rewarded nor punished. Statutes that deny children citizenship
based on the marital status of their parents contradict the teaching of the
Supreme Court in Plyler v. Doe that
“innocent children” should not be characterized to their detriment
“on the basis of a legal characteristic over which . . . they have little
control.” [150]While Plyler
v. Doe dealt with an attempt by the State of Texas to bar undocumented children from the
public schools, the notion of the Fourteenth Amendment as a guarantor of equal
justice under law for all, regardless of their station in life, applies with
infinitely greater clarity here when the most precious right of all is at
stake. The issue is not, as some
critics of birthright citizenship would have us believe, whether illegal
immigration to the United States should be curbed or made more difficult, but
whether a departure from over a century of settled interpretation as to what
the Citizenship Clause means is the necessary and proper, even the most logical
or effective, means of doing so. Not
every disagreement over public policy should be elevated to the level of
constitutional revisionism.

There have been a series of bills in the ten to twelve
years that seek to narrow birthright citizenship without making the baby
stateless. [151]Each of these employ the same formula. They define “subject to the
jurisdiction” as not including a child whose mother is neither a United States
citizen nor a lawful permanent resident, and
who is a citizen or national of another country of which either natural parent
is a citizen, or entitled to become a citizen on application. Several points merit comment. First, the parents do not have to be
married. It makes no difference if
the child is born in or out of wedlock.Second, you could wind up with a situation where “a person may be
born in the United States to
a mother who is a nonimmigrant or illegal alien and a father who is a U.S. citizen,
national or lawful permanent resident . . . and not be born a US citizen because that person has
a claim to citizenship in the mother’s country.” [152]Third, the law only affects those born
after its effective date. The
citizenship status of similarly situated children born before this date and
time appears to be unaffected. Fourth,
it is not certain if the parent actually has to exercise this potential claim
to foreign citizenship nor within what period of time such an election must be
made. Fifth, the same child under
identical facts born outside the United States may retain a valid
claim to citizenship.[153]Sixth, and this is the key point, such a
child is not, despite birth here, born subject to the jurisdiction of the United States
but rather is now considered born subject to the jurisdiction of a foreign
country. It is not explained what
happens if that country either refuses to recognize or declines to exercise
such jurisdiction. Who gets the kid
then?

One of the cardinal virtues of the common law rule is that
everyone knew what it meant, or thought they did. Precisely for that reason, birthright
citizenship does what law, at its best, is expected to and can do, namely to
provide a set of clearly drawn rules that can be understood and followed so
that those who live by them know what it expected of them and how to achieve
it. Attempts to change the meaning
of birthright citizenship by statute, but delay the effective date of any such
change until repeal of the Citizenship Clause is accomplished, completely
removes the ability of people to order their lives according to settled
expectations. When the citizenship
of so many is in doubt, who can remain secure? An excellent illustration of this
dislocating effect is House Bill 705,[154]
introduced eleven years ago by Representative EltonGallegly,
a GeorgiaRepublican who has been both active and
influential on immigration issues in the House GOP Caucus. Congressman Gallegly proposed to amend Section 301(a)
of the Immigration and Nationality Act[155]
so that only children born in the United States to “citizen or
legal resident” mothers would automatically derive citizenship. Precisely who or what a “legal
resident” is remained a bit murky. There is no definition. Does “resident” here mean the
same as “domicile” so that it must be one’s principal place
of residence? If so, could any
non-resident alien ever establish residence in the United States, except for those,
like H-1B temporary workers or L-1 intra-company transferees who do not have to
maintain an unabandoned foreign residence abroad? Presumably, a “legal
resident” is a different animal than a “permanent” resident,
although we do not know. If a
“legal resident” is someone who is in the United States under color of law,
then it would include all non-resident aliens who were likely not exactly the
kind of people that Congressman Gallegly
thought he was helping. It is
unclear what would happen if the child is born to an H-1B or L-1A mother whose
status had expired but had an extension of status request pending which had yet
to be approved.What about if a B-1
visitor was waiting for a decision on such an extension while her child is
born. Is this child not to be a United
States citizen because United States Citizenship and Immigration Services does
not allow premium processing of the I-539 while the O-1 mother’s child
born in the adjoining hospital bed has a valid citizenship claim because his
mother’s employer paid the $1000 expedite fee? What if the mother’s H-1B petition
is on appeal to the Administrative Appeals Office following a denial by the TexasServiceCenter? Is her daughter
born in Dallas a citizen? What if the mother entered legally but
overstayed? What then? During the interregnum between
modification of the Immigration and Nationality Act and repeal of the Citizenship
Clause, an interval that can easily take quite a while, whose citizenship is
secure and whose is not?

Even if such a far-reaching statutory change is not
conditioned upon successful surgery on the Fourteenth Amendment, the utter lack
of definitional precision remains profoundly troubling.Consider, for example, the Enforcement
First Immigration Reform Act of 2005.[156]In order for the child born in wedlock to
a permanent resident parent, or out of wedlock to a permanent resident mother,
to derive United States
citizenship at time of birth that parent has to “maintain her residence
in the United States.”
What does that mean?Is the validity of the child’s
citizenship claim subject to the parent’s possible abandonment of
permanent resident status and, if so, who judges such abandonment, in what
forum, and by what evidentiary standard? Is one child a citizen because his mother
did not leave the United
States while another child is not because
his mother did? Would such
seemingly arbitrary and capricious distinctions made with reference to so
weighty a matter promote respect for the rule of law?It is a real constitutional question as
to whether Congress can adopt such a measure that weakens, rather than
bolsters, a right guaranteed by the Fourteenth Amendment. In Katzenbach
v. Morgan,[157]
the Supreme Court ruled that Congress could not legislate in contravention of
such constitutional guarantees.Would the courts find that such action could pass constitutional muster
as a necessary extension of Congress’ power to regulate immigration into
the United States
under Article I, Section 8 of the Constitution? The lack of a clear and readily accessible
answer to such an important question suggests, to some extent, the manifest
destabilization that would ensue from such a drastic change. [158]

Those who contend that Congress can modify the Citizenship
Clause by statute do not believe that Fourteenth Amendment applies to the
children of illegal aliens or those whose presence here is temporary in nature
or duration. They do not reject
what the Supreme Court has said in Wong
Kim Ark and its progeny, but simply maintain that the teaching of such
cases does not have the scope and application we always thought it did. Whatever we may think of such an
argument, its originality lies in denying that birthright citizenship can be
traced back to, or justified by, a constitutional mandate. By contrast, those who would require a
change to the Fourteenth Amendment itself, either by outright repeal or
material revision of the Citizenship Clause, or condition any statutory
redefinition of citizenship on such constitutional action, are really saying
that the common law rule was right all along. They do not dispute it; they simply want
to change it. This is a significant
intellectual concession that the advocates of statutory initiative alone do not
make and do not have to make.[159]Each approach has its own difficulties. Those who rely on Congress and nothing
else are far more likely to get their way, but also far more likely to trigger
a prolonged fight in the courts that is problematic at best from their
perspective. Those who call for
constitutional change have a far tougher fight on their hands, are much less
likely to win a victory, but, if they do, have a significantly greater chance
of keeping it. It is certainly true
that, on rare occasions, when the moral imperative of overturning precedent
becomes overwhelming, the Supreme Court has reversed settled law to chart a new
course. However, this is done very
seldom and only in response to enormous agitation and significant societal
evolution on such an issue that has either compelled the Court to act or
afforded it the opportunity to do so. The historic dismantling of Jim Crow in
the 1950’s and 1960’s is perhaps the best and most obvious example.
This is simply not the case with
birthright citizenship yet, although the disconnect between the policy elites
and the great mass of ordinary Americans on this issue does appear to be
growing. This is troubling because
the American people are unlikely to easily understand or long support something
they do not believe is either fundamentally just or manifestly in their national
self-interest.

The various constitutional amendments proposed in recent
years, while somewhat easier to understand than their statutory cousins, still
suffer from a similar lack of definition, the cumulative effect of which is to
shrink the circle of birthright citizens and guarantee citizenship largely to
the children of those already members of the club. The children of citizens will be
citizens; not sure about anyone else [160].A good example is Congressman
RonPaul’s
American Citizenship Amendment of 2005.[161]While gender neutral, the proposal would
require that a parent either be a citizen or “owe permanent allegiance to
the United States.” [162]This would appear to exclude the children
of permanent residents who continue to owe primary allegiance to their country
of birth. Two years earlier, Congressman Paul
introduced essentially the same constitutional amendment but, this time, it
would require both parents to be
either citizens or those who owe permanent allegiance.[163]This would be a retreat from the Child
Citizenship Act of 2000 that modified Section 320 of the Immigration and
Nationality Act which only requires one parent to be a citizen if the child is
under eighteen and a lawful permanent resident.[164]Interestingly, in both 2003 and 2005, Congressman Paul does not
speak of “lawful permanent residents,” but rather “persons
who owe permanent allegiance” as if he understood them to be one and the
same, which they are not. Rather
curiously, in neither instance would Congressman Paul require that the parent demonstrate
either physical or legal custody over the child, while the Child Citizenship
Act requires both.

Congressman MarkFoley
of Florida also wants to amend the
Constitution so that a child born in the United States would not
automatically gain citizenship unless a parent is a citizen or lawful permanent
resident “at the time of the birth.” [165]Now, this focus on the time of birth is a
logical snapshot and one in keeping with the historical understanding of when
citizenship comes into being. However,
it does not consider the fact that many of these permanent resident parents
will become United States
citizens and may already be in the process of doing so. Moreover, if the child is not a United States
citizen, what are they at time of birth? They obviously have to have some legal
status to stay here. What is it? Since current law does not allow a child
to apply for naturalization until age eighteen,[166]
how is the child to remain here until then? If the child is not to be a citizen,
should not at least permanent resident status flow from the reality of birth in
the United States? [167]If the concern of critics is that
children born to non-American parents in the United States do not have
sufficient ties to this country, a true understanding of our culture, a
heartfelt appreciation of our most cherished traditions, how does this approach
help? If we want these children to
be attached to the principles of the Constitution, is depriving them of the
legal means to stay in the United
States and learn what they are all about the
best way to achieve our objective?

That is the true and abiding objection to the proposal by
Congressman Stockman to amend the Fourteenth Amendment so that only children of
citizens and those “lawfully present in and subject to the jurisdiction
at the time of that parent’s entry into the United States, and all
persons naturalized according to the laws of the United States” would
have a recognized citizenship claim.[168]This seems a highly circular definition
that really serves to clarify very little at all. Restating without clarifying the meaning
of “subject to the jurisdiction” only gets us back to where we
started.What does “lawfully
present” mean? Does one have
to be “lawfully present” for any specified period of time? Is there a distinction between
“legal residence” and “lawfully present”? Congressman AnthonyBeilenson
of Californiathought there was in 1993 when his
constitutional trial balloon spoke of being born in the United States to “ a mother
or father who is a legal resident.” [169]Would either phraseology not include
visitors, temporary workers, intra-company transferees, exchange visitors and
other non-resident aliens? Is such
“lawful presence” disturbed by a violation of status or an overstay
past the expiration of one’s I-94?What happens when there is a pending request for extension of status? Is a child born to such a person a United States
citizen? Take the case where the VermontServiceCenter
denies an L-1 extension but the Administrative Appeals Office has yet to decide
the appeal? Is the parent still
“lawfully present”?[170]One wonders why Congressman
Stockman distinguishes between
“citizens of the United States”
and “all persons naturalized according to the laws of the United States.”Is there a difference between the two? We do not know when the parent has to
naturalize since the wording of the amendment fails to stipulate that this must
be at time of birth. Presumably,
therefore, this can come later although how much later, and what the child is
until then, is left to the realm of pure speculation.

To a very real extent, the motives
behind all of these proposals are entirely laudable; indeed, who can question
the wisdom of promoting allegiance or cementing ties between a government and
its citizens? Yet, much as we understand and applaud their spirit, such
initiatives inevitably clash with the way we live and work in the digital age.
Constant personal movement, frequent job relocation, fundamental realignments
of business needs and strategic imperatives, all of these reflect a world where
the only constant is the absence of permanence, the inevitability of change.
Any attempt to modify birthright citizenship will most certainly fail if it
does not acknowledge and adjust to these realities. In a flat world, citizenship
must be able to bend- or it will break.

VI. WHERE WE COME
OUT

Law can, and often does, become a symbol for many social
developments that passionately upset some people while arousing the most fervent support among others. The global economy has flattened national
barriers, triggering in the process mass migration from the less to the more
developed world, a reallocation of human capital made possible by advances in
technology and communication. The
resulting sense of cultural dislocation has caused a reassessment of
immigration policy not just in the United States,
but in Europe and the Pacific Rim as well. Add to that the seismic waves unleashed
by 9/11, which even now have yet to be fully felt, and the stage is set for a
second look at birthright citizenship.

Who can do this? If we view birthright citizenship as
primarily a matter of constitutional interpretation, then surely it is the
Supreme Court, now up to full strength, who must step forward and rule directly
on whether the Citizenship Clause extends far enough to cover the children of
the undocumented, something it has never done.It is not enough to analogize from what
the Court has said before. However
persuasive such judicial marginalia is, however insightful our inferences may
be, they are not the clear and direct judicial voice on this essential issue
that the nation needs to hear. Hamdi could have been the occasion for
such clarity, but the Court chose to let the moment pass by. It must not do so again. Such chances do not soon or easily come
around. If, however, the Court will
not lead, then the Congress must decide whether any revision of birthright
citizenship is, at bottom, an issue of constitutional
jurisprudence or public policy. If the former, then the Congress has no choice
but go down the path of amending the Fourteenth Amendment. This is not a choice made lightly for
down that road lie many disappointments and frustrations. There is much pain there. If, however, Congress believes the
controversy is inherently political, one governed by ideals not law, then it
will seek to change the meaning of citizenship through the exercise of its
enforcement powers granted to it by Section 5 of the Fourteenth Amendment
itself. As we have seen, in any
such exercise, clarity of thought and precision of expression are of the utmost
necessity.[171]

It is not altogether a bad thing that this should now be
happening in our land. Americans
must re-examine what they care most about when the storms of the present demand
a second look at the past.At a
time when the cause of liberty is under attack throughout the world, when the
nation and its values are beset on all sides by critics, both foreign and
domestic, the importance of birthright citizenship needs to be challenged and
learned once again by a new generation of Americans. This is our obligation and our
opportunity, to understand why the Citizenship Clause came into being, what it
has meant to the American people and how it can guide us in the long twilight
struggle that now occupies our nation against those who seek to reverse
history. Such an informed
appreciation of this ancient and honorable doctrine is not the province of the
few; it does not belong to the elites, to those who sit high above us and far
away. It must again become part of
the fabric of all our lives so that we who live by its tenets know why this is
so. The concerns that many have
honestly voiced about birthright citizenship must be listened to with the
respect and honesty they deserve. Such
voices must be heard. In all of its
long history, the Fourteenth Amendment has been many things to many people: to
some, a rallying cry against injustice; to others, a sword to limit government
or a mantra for the preservation of prejudice and the protection of privilege. Yet, there is one thing that it has never
been, and that is amended. Do we
really want to change that at this critical moment in our national story?The Citizenship Clause sounded the
confident note of a nation on the march, emerging from the Civil War and ready
to become a world power.To repeal
it now would sound retreat to both friend and foe alike, signifying an America
uncertain of the future and unsure of its identity.Moreover, a constitutional change to
birthright citizenship in absence of consensus would not settle the controversy
but only ignite more protracted and intensely bitter agitation for its repeal,
much as happened with the Eighteenth Amendment.The Constitution works best when it
operates to ratify what society has already accepted, not when a politically
potent faction is able to impose its view upon the rest of us.While the hopes and dreams of those who wrote the
Citizenship Clause have long since vanished and faded away, what they did and
gave to us remains as it first was.It is ours to visit anew. Birthright citizenship is more than a
legal doctrine, more even than a constitutional concept. It is, at bottom, a manifestation of the
American spirit, an expression of the American promise that all those who make
our cause their own can become and are part of
us. This is what birthright
citizenship has meant before and what it can mean again to us and to
others.As Lucius Cary Falkland,
the Second Viscount, told the House of Commons in November 1641, “when it
is not necessary to change, it is necessary not to change.” [172]Now is such a time.

Endnotes

[1]
Citizenship is the most precious gift that any nation has within its power to
give.Since the rise of the nation
state, it is the most central definition of who belongs and who doesn’t.That is why Chief
Justice Warren characterized
citizenship as “man’s basic right for it is nothing less than the
right to have rights.” Perez v. Brownell, 356 U.S.
44, 64–65 (1957) (Warren, C.J., dissenting).Even earlier , the Supreme Court noted
that the removal of one who asserts citizenship deprives the claimant of
“ all that makes life worth living.”NgFung
Ho v. White, 259 U.S.
276, 284 (1922).

[2] A
well-known exposition of natural law theory with which the Founders were
undoubtedly familiar isSamuel Pufendorf, The Whole Duty of Man According to the Laws
of Nature (William Tooke trans., Ian Hunter & David Saunders, eds.,
Liberty Fund 2003) (1691).The
following excerpt is squarely on point to our story:

A State or Government being thus constituted, the Party
on whom the Supreme Power is conferr’d, either as it is a single Person,
or a Council consisting of select Persons, or of All in General, is called a
MONARCHY, an ARISTOCRACY, or a FREE
STATE; the rest are looked upon as Subjects or Citizens, the Word being taken
in the most comprehensive Sense: Although, in Strictness of Speech, some call
only those Citizens, who first met and agreed together in the forming of the
said Society, or else such who succeeded in their Place, to wit, House-holders
or Masters of Families.

Moreover, Citizens are either Originally so; that is,
such as are born in the Place, and upon that Account claim their Privileges; Or
else, Adscititious; that is, such as come from Foreign Parts.Of the first Sort,
are either those who at first were present and concerned in the forming of the
said Society, or their Descendants, who we call Indigenes, or Natives. Of the
other Sort are those who come from Foreign Parts in order to settle themselves
there. As for those who come thither only to make a short Stay, although they
are for that Time subject to the Laws of the Place: nevertheless, they are not
looked upon as Citizens, but are called Strangers or Sojourners.”

Id. at 197.Note that Pufendorf’s distinctions as to who is a citizen at
natural law and who is not can be used to support an abridgement of birthright
citizenship precisely along the lines suggested by contemporary critics. It should also be remembered that, in 17th century
terms, this natural law definition of citizenship is, by no means, restricted
to a “national” government, to the extent that such existed, but
rather to any organized political society, be it town, locality or state.There is a consensual social contract assumption
operating on all of these levels that the “stakeholder” has an
interest in his status as a citizen.There was a recognition in the 17th Century, one proven out throughout
American history, and reflected in the modern interest in promoting
naturalization, that those who become citizens and whose claim to such status
is universally recognized have a strong and continuing interest in the success
and prosperity of the society of which they are an integral part.The Founding Fathers were familiar with
the distinction between those who came to reside permanently and those just
passing through.They assumed that
“sojourners” were subject to local law but, as they had no
intention of staying, they were not citizens.Folks who stayed, and were not warned
out, were citizens. England
did not even have a naturalization law for the nation until 1757.Immigrants who were able to stay just
melted into the society, unless some authority at some level made them move
on.The nature of migration in the
17th century was obviously far different than it is today, both in sheer
numbers and in character.The need for a law defining citizenship did not
seem nearly so evident in a society where rights evolved as a matter of social
development and did not need government imprimateur to guarantee respect and
recognition. Email
exchange between the Author and Dr.RichardP.Gildrie, Professor of History, AustinPeayStateUniversity
(Jan. 19–20, 2006).

[6]PollyPrice,
Natural Law and Birthright Citizenship in
Calvin’s Case, 9 Yale J.L. & Human. 73, 141 (1997).The long-lasting significance of Calvin’s Case as a touch-stone for
American ideas on citizenship in the pre-Fourteenth Amendment era cannot be
overestimated.As ProfessorPrice
notes, it was the starting point from which all analysis began: “The
importance of Calvin’s Case in
the early history of the United
States is accounted for in part by the fact
that it permitted courts to resolve questions of citizenship status in the
absence of any statutory or constitutional authority on the
subject.”Id.
at 142.Ironically, precisely because Calvin’s Case was so authoritative, or deemed
to be so, the need for positive action by the states or Congress to define the
limits of citizenship was deferred until the Supreme Court forced the issue by
rejecting it in the DredScott
case.See Scott v. Sanford, 50 U.S.
(19 How.) 393 (1857).DredScott
was a slave born in Missouri, taken by his
owner to Illinois, a free
state, and then returned to Missouri.
Chief Justice Taney,
appointed by President AndrewJackson, departed from the common
law in order to avoid admitting what he regarded as an inferior race into the
national family.Perhaps the
boldest expression of a consent-based theory of citizenship, DredScott
was nothing short of revolutionary in scope.The Fourteenth Amendment, when viewed
from this vantage point, was a profoundly conservative act because its basic
purpose and intent was to reverse what Chief Justice Taney had attempted in Dred Scott, to restore the common law
rule on citizenship, give it constitutional form and thereby place it beyond
future legislative challenge.It
was precisely because the common law rule was so universally accepted that Dred Scott seemed so shocking: “It
is beyond doubt that, before the enactment of the civil rights act of 1866
… or the adoption of the constitutional amendment, all white persons, at
least, born within the sovereignty of the United States, whether children of
citizens or foreigners, excepting only children of ambassadors or public
ministers of a foreign government, were native-born citizens of the United
States.”Frederick Van Dyne, Citizenship of the United States 6–7 (1904).

[7] Note,
Citizenship as A Weapon in Controlling the Flow of Undocumented Aliens:
Evaluation of Proposed Denials of Citizenship to Children of Undocumented
Aliens Born in the United
States, 63
Geo. Wash. L. Rev. 551 n.39 (1995).

[9]See JosephH.Carens, Who Belongs? Theoretical and Legal Questions about Birthright
Citizenship in the United States,
37 U. Toronto L.J. 413 (1987).The same political cross-currents led
the British to abandon the common law rule in 1981 in favor of a nuanced
approach that gave more consideration to the parents’ legal status.SeeAyeletShachar, Children of a Lesser State: Sustaining Global Inequality Through
Citizenship Laws 9 n.13 (Jean Monnet Working Paper No. 2, 2003).In 2004, the Irish people by referendum
did away with automatic citizenship by birth when both parents were not Irish
citizens.GretaGilbertson,
Citizenship in a Globalized World, Migration Information Source2 (Jan. 1, 2006), at http://www.migrationinformationsource.org/Feature/print.cfm?ID=369.

[12]DavidSchwartz,
Book Review, 74 Calif. L. Rev. 2143, 2169 (1986) (reviewing Peter Schuck & Rogers Smith, Citizenship Without Consent: Illegal Aliens in
the American Polity (1985) [hereinafter Schuck & Smith]).Professors Schuck and Smith have the
intellectual honesty to admit that DredScott“reminds
us” that consent contains within it “racist, exclusionary possibilities.”Schuck & Smith, supra, at 73.Even
freedmen born in a non-slave state could not hope to get society to recognize
their claim to citizenship because “it is not a power to raise to the
rank of citizen any one born in the United States who, from birth or
parentage, by the laws of the country, belongs to an inferior and subordinate
class.” DredScott, 50 U.S. at 417.The stigma of race precluded the
granting of consent and raised up a perpetual ban against admission: “In
fact, the Court created a new racially exclusive interpretation of birthright
citizenship; only the descendants of the nation’s Anglo-Saxon original
citizens would be bound in society’s mutual compact, and recognized as
community members from birth.”JonathanC.Drimmer,
The Nephews of Uncle Sam: The History, Evolution and Application of
Birthright Citizenship in the United
States, 9 Geo. Immigr. L.J.
667, 694 (1995).The consensual
construct built by Chief Justice Taney
would be demolished by “a definition of citizenship in which race played
no part.”Bickel, Citizenship In The American Constitution,
15 Ariz. L. Rev.
369, 374 (1973).That is why
President Lincoln’s Attorney General wrote an opinion for the Secretary
of Treasury in 1862 asserting that “as far as I know … you and I have
no better title to the citizenship we enjoy than the ‘accident of
birth’—the fact that we happened to be born in the United
States.”10 Op. Att’y
Gen. 328 (1862) (child born in America
of alien parents who never naturalized is, by virtue of birth alone, a United States
citizen).This was not the last
time that Attorney General EdwardBates reaffirmed his commitment
to, and belief in, birthright citizenship.See 10 Op. Att’y Gen.
382 (1862) (supported general principle of citizenship according to birth,
rejecting, in the process, the existence of an intermediate class of persons
above aliens but below the rank of citizens ).It is precisely because of birthright
citizenship that we have no second-generation immigration problems in the United States—we
have no second generation immigrants.See also Note, The Birthright Citizenship Amendment: A
Threat To Equality, 107 Harv. L. Rev. 1026 (1994); D. Martin,
Comment, The Civic Republican Ideal for
Citizenship and for Our Common Life, 35 Va.
J.Int’lL. 301 (1994).

[13]
“The consensual strand realized its dangerous potential in the Dred Scott decision in which Chief Justice Taney
expounded American citizenship as a club open only to whites.”GeraldL.Neuman, Back to DredScott?, 24 San Diego L. Rev.
485, 488 (1985) [herinafter Neuman, Back
to DredScott?]
(reviewing Schuck & Smith, supra note
12).

[14]See The Legality as a Matter of Domestic Law
of Extraterritorial Law Enforcement Activities that Depart from International
Law: Hearings before the Subcomm. on Civil and Constitutional Rights of the
House Comm. on the Judiciary, 101st Cong. 3 (1989) (statement of WilliamBarr,
U.S. Assistant Attorney General).

It was
Chancellor Ridgely, in Douglass v.Douglass, as early as 1821 that stated
there was a want of a constitutional definition of the word
“citizens” and Mr. Justice Miller
in the Slaughter-House Cases, says
that no definition of “citizenship” was found in the constitution.

JohnA.Hayward, Who Are Citizens, 2 Am. L.J. 315, 316 (1885).

[17]MargaretMikyungLee,
U.S. Citizenship of Persons Born in the
United States to Alien Parents, 2 (Congressional Research Service, Library
of Congress, updated Nov. 4,
2005).

[18] Price, Natural Law and Birthright Citizenship in
Calvin’s Case, 73 Yale J.L. & Human. 73, 141 (1997). See also Calvin
v. Smith,77 Eng. Rep. 277 (K.B. 1608).Much as the common law rule is identified with feudalism, jus sanguinis suggests a rejection of
the past and is linked with political change as a historical trend in human
affairs: “The modern inception of jus
sanguinis came with the post-French Revolution Civil Code of 1804, which
broke away from the territoriality principle. The French Civil Code held that as citizens, parents (specifically
fathers) had the right to transfer their status of political membership to
their offspring at birth, regardless of whether the child was born in France
or abroad. During the Napoleonic period, the concept of attributing membership
on the basis of descent was considered fresh and radically
egalitarian.”Shachar, supra note 9, at 12–13. See also PatrickWeil,
“Access to Citizenship: A Comparison of Twenty-Five Nationality
Laws,” inCitizenship Today: Global Perspectives and Practices 12 (T.AlexanderAleinikoff & DouglasKlusmeyer
eds., Brookings Institution Press, 2001).Since the United
States was born in revolution, perhaps that
is one reason why critics of birthright citizenship feel that jus sanguinis is more naturally suited
to our republican character.

[21]Id.
at 115. Had the force and effect of the
common law rule been less pervasive, it is possible that federal officials,
unable to rely instinctively upon it, might have been compelled against their
will to examine it with greater rigor, even before the Fourteenth Amendment
came on the scene.Such was not the
case.Precisely because the common
law was believed to have decided the question, such officials did not have to. See,
e.g.,Letter from Mr. Marcy,
Secretary of State to Mr. Mason, United States Minister to France (1854), in 2, Digest
of the International Law of the United States 394 (Francis Wharton, 2d
ed. 1887) (“In reply to the inquiry which is made by you … whether
the ‘children of foreign parents born in the United States, but brought
to their father’s country in which the father is a subject, and
continuing to resided within the jurisdiction of their father’s country,—are
entitled to protection as citizens of the United States,’ I have to
observe that it is presumedthat, according to the common law, any person born in
the United States, unless he be born in one of the foreign legations therein,
may be considered a citizen thereof until he formally renounces his
citizenship.”) (emphasis added).

The State Department view did not change after the
Fourteenth Amendment.In 1871,
Secretary of State Fish opined to the American Ambassador to Italy: “This
(the Fourteenth Amendment to the constitution) is simply an affirmation of the
common law of England and of this country so far as it asserts the status
of citizenship to be fixed by the place of nativity, irrespective of
parentage.” HenryC.Ide, Citizenship
By Birth—Another View, 30 Am.
L. Rev. 241, 242
(1896).The next year, Secretary
Fish told the American Ambassador to Austria
the same thing: “As a general rule, a person born in this country, though
of alien parents who have never been naturalized, is under the laws of the United States deemed a citizen of the United States.”
Id.The principle of birthright citizenship
was clearly stated by Attorney General Edwards Pierrepont in an advisory
opinion to Secretary of State Fish in Steinkauler’s
Case , 15 Op. Atty. Gen’l 15 (1875). Born
in St. Louis to a naturalized German,
Steinkauler only lived the first four years of his life here before his father
took him back to Germany.When he turned 20, the German Government
required him to report for military service, at which point his father asked for
help from American consular authorities on the ground that his son was an
American citizen.Attorney General Pierrepont
agreed.In 1877, Secretary Fish advised the
United States Minister to Spain
that the minor child of a Spanish subject born in America
was a US citizen and
repeated such guidance the following year to the American consul in France.
Id at 243.So far as the official position of the
American government is concerned, the Fourteenth Amendment made no change:
birthright citizenship was always the rule, both at common law and as a matter
of constitutional interpretation.Secretary of State WilliamEvarts reached the same conclusion two
years later in the case of the Boisseliers Brothers who were born here but
returned to Germany while
still very young and again in 1880 when very similar facts involved a Danish
child born in the United
States who sought to reaffirm his American
citizenship upon attaining his majority.Perkins v. Elg, 307 U.S. 325, 330–331 (1939). In
a 1906 State Department memorandum sent by Acting Secretary of State Robert
Bacon to the German Ambassador, the Department openly proclaimed its adherence
to birthright citizenship as a cornerstone of American diplomacy:
“According to the Constitution and laws of the United States as
interpreted by the courts, a child born to alien parents in the United States
is an American citizen, although such child may also be a citizen of the
country of his parents according to the laws of that country.” Perkins, 307 U.S.
at 333.In his classic exegesis of
the Fourteenth Amendment, Mr. Justice Gray
in Wong Kim Ark gives us all a
history lesson:

It can hardly be
denied that an alien is completely subject to the political jurisdiction of the
country in which he resides, seeing that, as said by Mr.Webster,
when secretary of state, in his report to the president on Thrasher’s
case in 1851, and since repeated by this court: “Independently of a
residence with intention to continue such residence independently of any
domiciliation; independently of the taking of any oath of allegiance, or of
renouncing any former allegiance-it is well known that, by the public law an
alien, or a stranger born, for so long a time as he continues within the
dominions of a foreign government, owes obedience to that government, and may
be punished for treason or other crimes as a native-born subject might be
unless his case is varied by some treaty stipulations.”

United States
v. WongKimArk,
169 U.S.
649, 694 (1898).

[22]GeorgeCollins,
Citizenship By Birth, 29 Am. L. Rev.
385, 387 (1895) (George Collins was later to write the amicus curiae brief against birthright citizenship in the landmark United States v. Wong Kim Ark, 169 U.S.
649 (1898). Perhaps foremost among contemporary
commentators, Mr.Collins did not feel himself or the
Supreme Court bound by the common law rule on birthright citizenship:

There is no
principle of the common law in force in the United States as such; whatever
principle it may be it derives its full force and efficacy from the
constitution or acts of Congress passed in pursuance thereof.There is nothing in the constitution to
indicate that the term “citizen” was used in reference to the
common-law definition of ‘subject’, nor is there any act of
Congress declaratory of the common-law doctrine, and the subject of citizenship
being national, questions relating to it are to be determined by the general
principles of the law of nations.

[24]Schuck & Smith, supra note 12, 42–72.In Wheaton v. Peters, 114 U.S.
591, 658 (1834 ), Mr. Justice McLean, while dismissing a common law copyright
claim, implicitly, though not intentionally, struck a blow against birthright
citizenship when he said that “[i]t is clear there can be no common law
of the United States ....The
common law could be made a part of our Federal system only by legislative
adoption.”While the absence
of a federal common law would not preclude state courts from creating one, it
does undermine the conceptual underpinning of Calvin’s Case upon which all birthright citizenship
rests.Perhaps, this is one reason
why, as late as 1844, Assistant Chancellor Sandford in Lynch v Clarke, 1 Sandford 583, 663
(N.Y. 1844), still felt that the choice between the common-law and
consent-based understandings of citizenship remained very much an open
question.To some extent, perhaps
to a very real extent, the debate over whether 19th century America formally adopted the common
law misses the point.Assuming, arguendo, that it did not, this does not
mean that the influence of the common law conception of citizenship was any
less pervasive given the fact that the cultural and intellectual climate
nurtured it and continued to feed it.It was thisclimate that gave
birth to the FourteenthAmendment:

When our
government was formed, it was organized from British colonies, by people
accustomed to British law, and saturated with the principles of the common
law.Without insisting that there
is a common law of the United
States, it is sufficient for the present
purpose to say that our new ship of state was launched in an ocean of common
law, and that the legal principles which all its inhabitants had been
accustomed to regard as fundamental would continue to control their national
action until new principles were found necessary by new exigencies and added
experiences.Hence, it would not be
unreasonable to say that, at least in the earlier years of our Republic, the
generally accepted doctrine would have been the inconsistent British one, that
all persons (generally speaking not including children of foreign ministers,
etc.) born within the United
States, and all persons born abroad of
citizens of the United
States, including the second generation,
were citizens of this country.

[25] Shanks
v. Dupont, 28 U.S.
(3 Pet.) 242, 248 (1830).This case
held that a woman who had been born in South Carolina
before the Declaration of Independence and lived there afterwards was a South Carolina citizen
following independence, despite her marriage to a British soldier during the
occupation of her home town.Quotes
are what we make of them so it bears noting that, only three years later, in
his treatise on the Conflict of Laws, Mr. Justice Story also
endorsed birthright citizenship: “Persons who are born in a country are
generally deemed citizens and subjects of that country.”Story, Conflict of Laws,
48 (1834).

[26]MarshallB.Woodworth,
Citizenship of the United States Under The Fourteenth
Amendment 30 Am. L. Rev.
535, 536 (1896).Webster,
Law of Citizenship (1891), argues
that the United States
never formally embraced jus soli,
that international law mandated jus
sanguinis and that only the freedmen could claim citizenship under the
Fourteenth Amendment.

[27]INS Interpretations 301.1 (2004) (“Prior to
1866, absent any statutory of constitutional provision, it was generally held,
under the common-law principle of jus
soli ( the law of the place) , that a person born in the United States
acquired citizenship at birth; this principle was incorporated in the Civil
Rights Act of April 9, 1866, and, two years later, found expression in the
Fourteenth Amendment to the United States Constitution….”The very force and solidity of the
Fourteenth Amendment citizenship clause came from the fact that it codified
what had long existed and been universally understood to be the norm.

[29]Id.
at 676. (“The same congress, shortly afterwards, evidently thinking it
unwise, and perhaps unsafe, to leave so important a declaration of rights to
depend upon an ordinary act of legislation, which might be repealed by any
subsequent changes, framed the fourteenth amendment of the
constitution….”).

[30] Inglis
v. Trustees of the Sailor’s SnugHarbor, 28 U.S.
(3 Pet.) 99, 164 (1830).This case
considered whether a citizen could expatriate himself in a question of land
ownership brought by a child born in New
York before 1783 of Irish parents. Throughout the early 19th Century, the
impact of the American Revolution upon citizenship was a frequent topic for
litigation.See, e.g., McIlvaine v.
Cox, 8 U.S. (4 Cranch) 208 (1808),where
the Supreme Court upheld the New Jersey inheritance rights of a solider who had
remained in New Jersey after July 4, 1776, but thereafter joined the British
Army and left for England.This was
not the only time that the Supreme Court considered whether those born in the
American Colonies who had sided with the British during the War for Independence could inherit
property in the new nation as natural-born citizens.In two cases, McIlvaine v. Cox, supra,
and Lambert’s Lessee v. Paine,
7U.S. ( 3 Cranch) 97 (1805), the
Supreme Court debated but did not decide the issue.In a third case, Dawson’s Lessee v. Godfrey, 8 U.S. (4 Cranch) 321 (1807),the Court ruled that plaintiff could
not rely on Calvin’s Case but
did uphold its continued efficacy as applied to American citizens who continued
to own land in England.BernadetteMeyler,
The Gestation of Birthright Citizenship,
1868-1898: States’ Rights, the Law of Nations and Mutual Consent, 15 Geo. Immigr. L.J.
519, 528 (2001).While the Supreme
Court never explicitly upheld birthright citizenship before the Fourteenth
Amendment, it was largely because it did not have to do so.The Court does appear to have assumed
that the common law rule held sway when deciding related questions.See,
e.g.,Murray
v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 120 (1804) (presumed that
all born in the United States were citizens for this reason) (“whether a
person born within the United States, or becoming a citizen according to the
established laws of the country, can divest himself of that character…is
not necessary at present to decide.”); M’Creery v. Somerville, 22 U.S. (9 Wheat) 354 (1824) (in
settling land title to Maryland property, Court assumed that children born
there were American citizens).Looking back at The Schooner
Charming Betsy, when speaking for the Court in Wong Kim Ark, 169 U.S.
at 658-59,Mr.
Justice Grey concluded that Chief
Justice Marshall assumed without deciding that all those born in the United States
had a valid claim to citizenship.Though not a federal case, Gardner
v. Ward, reported inKilham v. Ward, 2 Mass. 236, 244n.a
(1806), reaffirmed the common law rule of Calvin’s
Case upholding the voting rights of a Salem, Massachusetts native who had
spent several years in Newfoundland, Canada, before returning to his home
town.Ruling that the plaintiff was
a citizen, Judge Sewell
summarized the continuing impact of Calvin’s
Case in a forthright manner that left little room for doubt:

A man born
within the jurisdiction of the common law is a citizen of the country wherein
he was born. By this circumstance of his birth, he is subjected to the duty of
allegiance... and becomes reciprocally entitled to the protection of that
sovereign and to the other rights and advantages which are included in the term
citizenship.

Meyler, supra,
at 528 n.70.

[31]SeeInglis,
28 U.S.
at 156.It is interesting to note
in passing a comment in the 1928 Harvard Law Review on the contemporary
validity of birthright citizenship: “It seems safe to say that the same
rule would be applied to children born to aliens temporarily within the
country, no matter how short their stay.”Comment, Citizenship by Birth, 41 Harv.
L. Rev. 643, 644
(1928).This same comment goes on
to remind us that the same rule should apply a fortiori to “children born in the United States to domiciled
aliens.” Id. at n.9.

[32] 1
Sandford Ch.
583, 663 (N.Y. 1844).Vice-Chancellor Lewis Sandford held that the “U.S.-born child of
an Irish resident of the United States who returned to Ireland after the
child’s birth and died without ever declaring even an intent to be
naturalized was a U.S. citizen.”Margaret Mikyung Lee, U.S. Citizenship
of Persons Born in the United States to Alien Parents, 4–5
(Congressional Research Service, Library of Congress, updated Sep. 13, 2005).

[36]PatrickLynch,
father of Julia, lived only 5 years
(1814–1819) on an upstate New York farm
owned by his brother, often spoke of his desire to return to Ireland, and did not officially
declare an intent to acquire American citizenship as required by contemporary
naturalization laws.Schuck &
Smith, supra note 12, at 58.Professors Schuck and Smith contend that
Chancellor Sanford’s
“choice of the common-law view was based essentially on the feared
practical consequences of purely volitional citizenship—particularly a
right of expatriation—for the stability of government.” Id.
at 61.Question: Is such legal
realism any less persuasive or compelling because it considers the pragmatic
impact of a theory when put in action?Can law develop separate and apart from the society whose activities and
social systems are to be governed by such decisions?

[38]GeraldL.Neuman,
The Lost Century of American Immigration
Law (1776-1875),93 Colum. L. Rev.
1833 (1993) [hereinafter Neuman, Lost
Century].

[39]Id.
at 1842 n.43. “Resolved that it be, and it is hereby recommended to the
several states to pass proper laws for preventing the transportation of
convicted malefactors from foreign countries into the United States.”13 J.
of Cong. 10506 (Sep. 1788).

[44]Id.
at 1849-1850.The Supreme Court
struck down a Massachusetts law requiring ship captains to pay $2 for each
high-risk passenger in The Passenger
Cases, 48 U.S. (7 How.) 283 (1849).Almost all of the Justices sanctioned the use of state police power to
bar admission of sick or impoverished aliens.Neuman, Back to DredScott?, supra note 13, at 497
n.50.See also Mayor of New York v.
Miln, 36 U.S.
(11 Pet.) 102, 142 (1837).

[45] Neuman,
Lost Century, supra note 38, at 1851.This is not all that dissimilar from current law that fines common
carriers who transmit those without valid visas to come here or forces them to
return any passenger summarily excluded to their point of origin.

[46]Id.
at 1852.There is a striking
parallel to contemporary poverty guidelines as an immigration filter.

[49]Henderson v. Mayor of New York,92U.S. 259 (1875).In Chy
Lung v. Freeman, 92 U.S. 275 (1875), the Supreme Court invalidated a
California statute that required non-citizen passengers from abroad whom the
California Commissioner of Immigration had branded as infirm, mentally
disabled, physically handicapped or simply immoral to post a $500 bond on the
ground that only Congress could regulate commerce with other nations.

[54]Id.
at 1874.There are echoes of
current mandatory detention practices in these antebellum procedures
practices.We do not readily
recognize them because our modern minds do not think of immigration regulation
as a state issue.Yet, before the
Civil War, in the world that gave birth to the Fourteenth Amendment, that is
precisely what it was.The transfer
of power over immigration from the states to WashingtonD.C.
would come later.

[57]Moore v. Illinois, 55 U.S. (14 How.) 13 (1853) (Grier, J).But see,Prigg. v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842) (Mr. Justice
Story, speaking for the Court, invalidated a slavecatcher’s conviction
under Pennsylvania law for returning an alleged fugitive slave on the grounds
that only the federal government could enforce the Fugitive Slave clause of the
Constitution)..

[61]Henderson
v. New York,92 U.S. 259
(1876); Chy Lung v. Freeman,92 U.S. 275 (1876).Despite such rulings, stateimmigration was not entirely a relic of
the past: “Even in those cases, the Court purported to leave open the
existence of core police power authority in the states … and subsequently
upheld state quarantine laws against foreign commerce challenges.Morgan’s
S.S. Co. v. Louisiana Bd. of Health,118
U.S. 455 (1886); Compagnie Francaise de Navigation a Vapeur v. Louisiana State
Bd. of Health,186 U.S. 380
(1902).”Neuman, Back To DredScott?,
supra note 13, at 497 n.52.

[62] It is
well-settled that the Constitution should not be read to create a
redundancy.See, e.g., Gustafson v.
Alloyd Co., 513 U.S.
561, 562 (1995) (“this Court will avoid a reading which renders some
words altogether redundant.”).

[63]JohnC.Eastman, Editorial, Constitution’s Citizenship Clause
Misread, Wall St. J, Dec. 7, 2005, at A19.ProfessorEastman,
Chapman University School of Law, distinguishes the jurisdiction of the nation
from the jurisdiction of its laws: “To treat the last clause as
describing merely territorial jurisdiction…is to render the clause
superfluous.Even temporary
visitors are subject to U.S.
jurisdiction in that sense; everyone here has to obey our traffic laws, for
example.The clause must therefore
mean something much more—an allegiance-owing jurisdiction.”For a more complete exposition of his
views in their full intellectual elegance, see Born in the USA?
Rethinking Birthright Citizenship in the Wake of 9/11: Oversight Hearing on
Dual Citizenship, Birthright Citizenship and the Meaning of Sovereignty Before
the Subcomm. on Immigration, Border Securityand Claims of the House Comm. on the
Judiciary, 109th Cong. 33 (Sep.
29, 2005). (statement of JohnC.Eastman, Professor, ChapmanUniversityLawSchool).The more consent plays a role in linking
the citizen to the nation, the more intricate, indeed intensely personal, such
a relationship becomes on several levels; from the consensual perspective, the
citizen and the nation can never be strangers since the exercise, perhaps the
very existence, of jurisdiction in Fourteenth Amendment terms demands a
“more or less complete, direct power by government over the individual,
and a reciprocal relationship between them at the time of birth, in which the
government consented to the individual’s presence and status and offered
him complete protection.”Children Born in the United States. to Illegal Alien
Parents: Hearing on H.J. Res. 93 before the Subcommitte on Immigration and
Claims and the Subcommittee on the Constitution of the House Comm. on the Judiciary,
104th Cong. 2 (1995) (testimony of Gerald L. Neuman, Professor, Columbia
University School of Law) [hereinafter Neuman on H.J. Res. 93] (quoting and
criticizing Schuck & Smith, supra
note 12), http://judiciary.house.gov/legacy/618.htm.In the modern era, when the influence of
government makes itself profoundly felt in the most intimate areas of our
personal and private lives, it is not clear if the consensual notion of
citizenship is more culturally congenial than the common law rule of birthright
citizenship or, to the contrary, is less suitable precisely because one is
never sure when, and under what conditions, consent once extended might not
suddenly be withdrawn.

[67]Id.See
also Schuck & Smith, supra
note 12, at 65–66: “In Worcester
v. Georgia, JohnMarshall adopted the position
advanced by the dissenters in Cherokee
Nation the tribes were tributary states … under the protection of the
United States,
but not in a way that involved the ‘destruction’ of their
independence.Georgia
therefore could not regulate members of the tribe as it would its own
citizens.” See alsoWorcester
v. Georgia,
31 U.S.
(6Pet.) 515, 552, 561 (1832).Not just the rule of birthright
citizenship, but the exceptions to it, were well known and firmly established
long before the Fourteenth Amendment.

[70]Id.
at 74.The text of the Civil Rights
Bill of 1866 can be found at Chapter 31, 14 Stat. 27 (April 9, 1866).While critics of birthright citizenship
are not sure what Congress meant to do, President AndrewJohnson’s
veto message leaves little doubt that the President knew: “By the first
section of the bill, all persons born in the United
States, and not subject to any foreign power, excluding
Indians not taxed, are declared to be citizens of the United States.This provision comprehends the Chinese
of the Pacific states, Indians subject to taxation, the people called
‘Gypsies’, as well as the entire race designated as blacks, persons
of color, negroes, mulattoes, and person of African blood.Every individual of those races, born in
the United States, is, by
the bill, made a citizen of the United
States.”Elk v. Wilkins,
112 U.S.
94, 114 (1884).There were minor textual differences
between the Fourteenth Amendment and the Civil Rights Bill of 1866, such as the
constitutional version using the words “subject to the
jurisidiction” while the legislative version spoke of “not subject
to a foreign power” but the blood lines of the Fourteenth Amendment are
clear and unmistakable.One scholar
notes that the “primary distinction between the language of the Act and
that of the Amendment was in the latter’s mandate that states use the
common law doctrine of birthright citizenship, divesting them of power to deny
local community membership to any individual born within its
borders.”Drimmer, supra note 12, at 696.President Johnson’s veto message is reprinted
at Cong. Globe, 39th Cong., 1st
Sess., 1857–1860 (1866) [hereinafter Cong.
Globe].

[71] Schuck
& Smith,supra note 12, at 77.Senator Trumbull’s
remarks can be found in full at Cong.
Globe, supra note 70, at 474.

[75]Calvin v. Smith,77 Eng.
Rep. 277 (K.B. 1608).The creation of a new national
allegiance to James I was a political
necessity, resulting from his accession as the Scottish king to the British
throne: “The central issue was whether a child born in Scotland could inherit lands in England
as a native or whether he was an alien and therefore ineligible to inherit
under English law.While Coke
opposed unlimited royal power, he nonetheless thought it vital to assert that
the political union created by the accession overrode all preexisting national
allegiances.”AdamC.Abrahms, Note, Closing the Immigration Loophole: The 14th Amendment’s Jurisdiction
Requirement, 12 Geo. Immigr. L.J. 469, 480 n.66 (1998).

[76] Schuck
& Smith posit that “Trumbull understood allegiance not
merely in Coke’s terms, as stemming from the fact of protection at birth,
but in a more consensualist fashion, as dependent upon the wills of the
community and the individual.”Schuck & Smith, supra note
12, at 80.

[77]Cong. Globe, supra note 70, at 2893 (remarks of Senator
LymanTrumbull).Critics of birthright citizenship argue
that this requirement “would clearly exclude the then non-existent and
thus unmentioned category of illegal aliens , who owe full allegiance to their
own countries but none to ours.” Hearing
on H.J. Res. 56 Before the House Comm. on the Judiciary, 104th Cong. 100
(1995) (written statement of PeterH.Schuck,
Professor, YaleLawSchool).
In his classic treatise on
constitutional jurisprudence, Thomas Cooley echoed Senator Trumbull by defining
“subject to the jurisdiction” to mean “full and complete
jurisdiction to which citizens are generally subject, and not any qualified and
partial jurisdiction such as may exist with allegiance to some other
government.” ThomasCooley, The General Principles of Constitutional Law
in America243 (Lawbook Exchange 2001) (1880). See Section V: Proposals, infra.

[78]Cong. Globe, supra note 70, at 2895.Schuck & Smith rely heavily upon these excerpted expressions:
“Their view of the matter – that the existence of full and
reciprocal obligations of individual allegiance and governmental power and
protection in this strong sense was the crucial element needed to satisfy the
jurisdiction requirement and qualify one for birthright
citizenship.”Schuck &
Smith, supra note 12, at 83.

[80]Cong. Globe, supra note 70, at 2897 (remarks of Senator
Williams).For critics of birthright citizenship,
an illegal alien cannot be fully and completely subject to the jurisdiction of
the United States
when his or her very presence here depends upon being able to stay in the
shadows and avoid detection.If
this is so, then the concomitant duty of the sovereign, here the people through
their elected representatives is also less then complete.Under such circumstances, critics
contend, being physically subject to the power of American law is a necessary
but hardly sufficient condition for the attachment of jurisdiction and the
citizenship thatcomes with it.See, e.g., CharlesWood,
Losing Control of America’s Future—The
Census, Birthright Citizenship and Illegal Aliens, 22 Harv. J.L. & Pol’y
455, 510 (1999).

[81] Schuck
& Smith, supra note 12, at
85.Using Senator
Howard’s measuring stick of
exclusive allegiance, one wonders if the children of lawful permanent
residents, who, after all, still retain their original citizenship, and are not
yet American citizens, would acquire citizenship at birth.Clearly, a permanent resident remains
indissolubly yoked to his or her country of birth and continues to owe all
proper fealty to such nation.Taken
to its logical extreme, only the children of citizens could be sure of
birthright citizenship, a conclusion that would invalidate most proposed schemes
to alter birthright citizenship, be they statutory or constitutional.See
Section V: Proposals, infra.Senator Howard introduced the Citizenship Clause
with this explanation: “It settles the great question of citizenship and
removes all doubt as to what persons are or are not citizens of the United States.This has long been a great desideratum
in the jurisprudence and legislation of this country.” Cong. Globe, supra note 70, at 2890.Should birthright citizenship be ended or materially altered, one
wonders if the question of who is a citizen would remain
“settled.”Would the
Fourteenth Amendment still guarantee that we all know who is a citizen at
birth?One critic of the
consent-based theory of citizenship as articulated most famously by Professors
Schuck and Smith does not think so: “In other
words, a person is not ‘subject to the jurisdiction’ of the United States unless the United States consents to the
person’s status as a citizen. This is completely circular and so would
really guarantee no one citizenship at birth.” Neuman on H.J. Res. 93, supra note 53, at 9.Inherent in the notion
of consent is the possibility that it will be withheld.

Analogizing between the illegal aliens of today and the
illegally imported African slaves brought to this country after 1808, when a
ban against their presence went into effect, Professor Neuman reminds us that a
consent-based interpretation of the Fourteenth Amendment might have the most
unexpected of consequences: “ Under the revisionist theory, children born
in the United States to illegally imported slaves would not have been
guaranteed citizenship by the Fourteenth Amendment, because the United States
government did not consent to their parents’ presence in the country.
This would contradictthe clear purpose
of the Civil Rights Act of 1866 and the Fourteenth Amendment …”
Neuman on H.J. Res. 93, supra note
53, at 10.Even by conservative
estimates, there were tens of thousands of such illegally imported African
slaves.See C.VannWoodward, American
Counterpoint82 (1971); see also 1 R.Fogel & S. Engerman, Time On
the Cross 23-25 (1974).The
fact that the ban against slave importation was more theoretical than actual
only reinforces comparisons with contemporary crusades to turn back illegal
migrants: “If the statutes for the suppression of the slave trade were
under-enforced, if enforcement efforts were under-funded, if a segment of the
population encouraged the illegal migration in order to benefit from the
slaves’ labor, the parallel with undocumented aliens today is merely all
the stronger.”Neuman, Back To DredScott?, supra
note 12, 485, 498 n. 58.Moreover,
if birthright citizenship were to be changed, whether by constitutional
amendment or by Congress, what status would those who were to be citizens no
more have?By what right would they
lay claim to remain part of the American polity?

[82]EarlM.Maltz, The Fourteenth Amendment and Native American Citizenship, 17 Const. Commentary 555, 567-568
(2000).Ultimately, on a strict
party line vote, with Democrats (including the nominal Republican Doolittle)
supporting the change with Republicans in stout opposition, Sen. Doolittle’s
amendment was rejected and the definition of citizenship remained
unchanged.Cong. Globe, supra note
70, at 2897.

[83] 15 Stat.
223; Rev. St.
1999.The Expatriation Act of July 27,1868, affirmed
expatriation as an inherent right that citizens of all nations could and most
exercise in a free and independent manner. However, the right to give up
citizenship in one country does not necessarily mean a concomitant and equal
right to acquire citizenship in another. The contradiction between a consent
based theory of expatriation and the common law rule on birthright citizenship
assumes that losing and gaining citizenship are one and the same, two parts of
the same process, simply at opposite ends of a continuum. There is no reason in
law or logic why this must or should be so.

[84]
Abrahms, supra note 75, at 483.Critics of birthright citizenship point
to the Expatriation Act of 1868 as proof that consent was king: “In 1868,
Congress passed what is known as the Expatriation Act.This was a companion piece to the 14th
Amendment.It was debated by
virtually the same Congress that passed the 14th amendment.This bill, the Expatriation Act of 1868,
rejected the notion of birthright citizenship.”Hearing
on H.R. 7 Before the House Comm. on the Judiciary, 105th Cong. 30 (1997)
(remarks of EdwardEhrler, Professor of Political
Science, CaliforniaStateUniversity
at San Bernardino).

[85] Afroyim
v. Rusk, 387 U.S.
253 (1967).Even before the Civil
War made the Fourteenth Amendment restoration possible, Americans had turned
their backs on the feudal notion of perpetual allegiance inherited from the
English common law tradition.See, e.g.,
8 Ops. Atty. Gen. 139 (1856).

[86] For a
view that the Fourteenth Amendment was a profoundly conservative act, see supra note 5.The purpose of the
birthright citizenship clause was to remove this most basic question from the
political arena since the Radical Republicans who had so recently enacted the
Civil Rights Bill of 1866 were quite well aware that their political dominance
would not last forever; what one Congress had done, a future Congress could
undo.“We desired,” Senator Howard candidly
admitted, “to put this question of citizenship and the rights of citizens
and freedmen under the civil rights bill beyond the legislative power of such
gentlemen … who would pull the whole system up by the roots and destroy
it, and expose the freedmen again to the oppressions of their old
masters.”Reconstruction Amendments’ Debates,
supra note 79, at 228 (remarks of Senator JacobHoward,
May 30, 1866).In speaking of the need for a
constitutional definition of citizenship, Bluff Ben Wade, the Radical
Republican from Ohio,
noted the impermanence of what had been done thus far:

The courts have
stumbled on the subject … and it is still regarded by some as
doubtful.I regard it as settled by
the civil rights bill … but by the decisions of the courts there has been
a doubt thrown over that subject; and if the Government should fall into the
hands of those who are opposed to the views that some of us maintain, those who
have been accustomed to take a different view of it , they may construe the
provision in such a way as we do not think it liable to construction at this
time, unless we fortify and make it very strong and clear.

Id.at 222.

[87] No
nation, the argument runs, would so reward illegal conduct.One critical scholar puts it this way:
“If mutual consent is the requirement for membership in a political
community and the parents of such children are individuals whose very presence
within the territorial borders of the United States is a violation of the
nation’s laws and sovereignty, then they are plainly individuals to whom
the society has explicitly and consciously denied membership.Having refused to consent to their
membership, it can hardly be claimed that the nation consented to the
membership of their children—children who are born while their parents
are in clear violation of the law.”Abrahms, supra note 75, at
474.

The legislative
history of the Fourteenth Amendment makes it very clear that the framers of
Fourteenth Amendment were not trying to adopt a transformative new conception
of citizenship by consent.That was
what the Supreme Court had done in the infamous DredScott
decision, excluding African- Americans from the Jus soli rule on the ground
that whites did not consider them appropriate partners in the political
community. The framers sought to overturn that innovation, and to reaffirm on a
racially neutral basis the same principles that had always governed American
citizenship for persons of European descent.

Neuman on H.J. 93, supra
note 53, at 10.

[89]Reconstruction Amendments’ Debates,
supra note ,79 at 223 (remarks of Senator JacobHoward).During congressional consideration of
the Civil Rights Bill of 1866, in which the definition of citizenship was
substantially the same as would later appear in the Fourteenth Amendment, Congressman Wilson, the
Chair of the House Judiciary Committee, voiced the same caution.To him, such language was “merely
declarative of what the law now is,” and he cited with approval the
antebellum constitutional scholar Willam Rawle who wrote: “Every person
born within the United States, its Territories or districts, whether the
parents are citizens or aliens, is a natural-born citizen in the sense of the
Constitution, and entitled to all the rights and privileges appertaining to
that capacity.”Cong. Globe, supra note 70, at 1115, 1117 (quotingWilliamRawle, A View of the Constitution of the United States of America80 (1829)).The Civil Rights Bill of 1866 and the
Fourteenth Amendment made explicit what the common law had implicitly always
assumed to be so, namely that “every person born within the limits of the
United States…is, by virtue of natural law and national law a citizen of
the United States.”Cong. Globe, supra note 70, at 2890 (statement of Sen.
Howard); Id.at 2893 (statement of Sen. Johnson) (
citizenship is established by “birth within the territory of the United
States.”).Even critics of
birthright citizenship acknowledge as they must that “the English common
law principles governing birthright citizenship provide important insight into
how the framers of the Fourteenth Amendment understood its citizenship
provision.”CharlesWood,
supra note 80, at 504.

[90]Cong. Globe, supra note 70, at 2890 (remarks of Senator
Howard).While most scholars read this to be
nothing more than a reaffirmation of traditional common law exceptions, critics
of birthright citizenship read into it something much different.They say that Senator
Howard used this phraseology to
announce his view that the “Clause did not include people born on
American soil to foreigners.” Brief of Amicus Curiae Eagle Forum
Education & Legal Defense Fund at 6, Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
(No. 03-6696).While construing
Senator Howard’s remarks in this manner does serve to make the desired
point, a fair reading of them in the context of the entire debate, including
all of his other statements, makes it difficult to accommodate the spin that
critics of birthright citizenship seek to place upon it. Professor Gerald L.
Neuman, perhaps the foremost critic of the consensualist theory, points out
that, while the traditional reading of Senator Howard’s remarks would
simply exclude the children of diplomats, something that had always been the
case, the revisionist interpretation would have distinctly unsettling and
profoundly unanticipated results:

The second
meaning does not support the revisionist interpretation at all, but would mean
that no children of foreigners, not even children of permanent residents, would
be U.S.
citizens.Only citizens’
children would be citizens.This
would mean that the Fourteenth Amendment had suddenly shifted U.S. citizenship law from the
common law jus soli rule to the Continental jus sanguinis rule and that Wong Kim Ark was wrongly decided. This
extreme change would not only have escaped the notice of the Supreme Court; it
would also have escaped the notice of the other Senators who debated Senator Howard’s
proposal on the understanding that it would confirm the citizenship of children
born to Chinese immigrants and Gypsies…Senator Howard was articulating the traditional
interpretation of the Citizenship Clause.

Societal and
Legal Issues Surrounding Children Bornin
the United States
to Illegal Parents: Joint Hearing on H.R.
705, H.R. 1363, H.J. Res. 56, H.J.Res. 87, H.J.Res. 88, and H.J.
Res. 93 Before the House Subcomm. on Immigration and Claims and the Subcomm. on
the Constitution of the House Comm. on the Judiciary, 104th Cong. 4 (1995)
(remarks of GeraldL.Neuman,
Professor, Columbia University School of Law).

[92]
Commenting on the Citizenship Clause in 1871, Representative
Kerr argued that the Fourteenth
Amendment endowed Congress with no new authority to define citizenship:
“Now, does this provision confer upon Congress of the United States any new or original
power?I say no.It is no grant of power; it gives no new
power to Congress; it takes no preexisting power from the State.It simply declares who shall be citizens
of the United States.”Reconstruction
Amendments’ Debates, supra
note 79, at 496; Cong. Globe, 42d
Cong., 1st Sess. 46 (1871) (remarks of Congressman Kerr on the Klu Klux Klan Act of
1871).More recent commentators
have also felt that the jurisdictional qualifier embedded within the
citizenship clause of the Fourteenth Amendment contained nothing remarkable:

The 14th
amendment’s use of “subject to the jurisdiction thereof” does
nothing more than incorporate four well-defined exceptions to the rule of
American birthright citizenship.Three of those exceptions are as old as the common law rule itself.By common law, children born to foreign
diplomats, on foreign ships, and to any occupying forces were consistently
deemed not fully subject to the sovereign and, therefore, not citizens by
birth. The final exception captured by this phrase, in some sense, related to
the others, was that of children born to American Indians who were recognized
as owing direct allegiance to the tribes of which they were members.

Hearing on H.R.
7 Before the House Comm. on the Judiciary,105th Cong. 19 (1997) (remarks of
Dawn E. Johnsen, Acting Asst. Attorney
General, Office of Legal Counsel).Justice Gray writing for
the Supreme Court in the seminal Wong Kim
Ark case provides the most authoritative answer:

The real object
of the Fourteenth Amendment of the Constitution in qualifying the words
“All persons born in the United
States,” by the addition, “and
subject to the jurisdiction thereof,” would appear to have been to
exclude, by the fewest and fittest words, (besides children of members of
Indian tribes, standing in a peculiar relation to the National Government,
unknown to the common law), the two classes of cases—children born of
alien enemies in hostile occupation, and children of diplomatic representatives
of a foreign State—both of which, as has already been shown , by the law
of England,
and by our own law, from the time of the first settlement of the English
colonies in America,
had been recognized exceptions to the fundamental rule of citizenship by birth
within the country.

United States v. WongKimArk,
169 U.S.
649, 683 (1898) (Gray, J.)

[93] There
is disagreement and debate as to whether an illegal alien can commit treason
against the United States.In Carlisle v. United States, 83 U.S. 147 (1872),
the issue arose as to whether aliens living here who assisted the Confederacy
during the Civil War could take advantage of a presidential pardon for such
crimes.Carlisle held that they
could for the reason that even “strangers … whose residence is
transitory” owed a temporary allegiance and were capable of violating it
through the commission of a treasonous act.Id. at 154.Much later, the State Department arrived
at essentially the same place when it found that a child born on Ellis Island
to a woman who had not yet cleared customs was a citizen of the United States under the theory that the mother
was on US soil and thereby
subject to US
law.For this reason, she was expected
to display “the same ‘temporary allegiance’ which is required
of aliens generally while they are in this country.”See
Memorandum of the Office of the Solicitor for the Department of State on Ona
Laszas (Feb. 6, 1930), reprinted in
3 G. Hackworth, Digest of International
Law 10 (1942).

[97]Reconstruction Amendments’ Debates,
supra note 79, at 134.Senator Trumbull declared his purpose to be
“to make citizens of everybody born in the United
States who owe allegiance to the United States.”Id.

[99]Id.Senator Reverdy Johnson, a Maryland
Democrat, and virtually the only member of his party to speak with any
frequency on these issues, opined that Indians not taxed should be excluded
from the Civil Rights Bill of 1866 because they were “considered
virtually as foreigners” and therefore not to be counted as part of the
citizenry, a description that Senator Trumbull did not contest when applied to
“those tribes with whom we make treaties.”Id.

[100]Reconstruction Amendments’ Debates,
supra note 79, at 222.However, as with all such remarks, they
must be taken in context to retain their original meaning.Right after saying this, Senator Wade
went on to say as well that such a situation could “hardly be applicable
to more than two or three or four persons; and it would be best not to alter
the law for that case ….It
would make no difference in the result.”Id.Senator Wade
was not abandoning his commitment to birthright citizenship as expressed in the
Fourteenth Amendment so much as having the intellectual honesty to admit that
there might be that rare case where it would not apply.It should also be noted that Senator Fessenden, who
raised the rhetorical question to which Senator Wade responded, was not an opponent of
birthright citizenship and, in fact, introduced an amendment to the citizenship
clause that allowed persons who were naturalized in the United States to also be considered
citizens for both federal and state purposes. Id.
at 237.

[101]Societal and Legal Issues Surrounding
Children Bornin the United States
to Illegal Parents: Joint Hearing on H.R.
705, H.R. 1363, H.J. Res. 56, H.J.Res. 87, H.J.Res. 88, and H.J.
Res. 93 Before the House Subcomm. on Immigration and Claims and the Subcomm. on
the Constitution of the House Comm. on the Judiciary, 104th Cong. 4 (1995)
(remarks of Walter Dellinger, Asst. Attorney General, Office of Legal Counsel,
United States Department of Justice).Mr.Dellinger points to a spirited exchange
between Senators Trumbull and Conness, both of whom were staunch supporters of
the Civil Rights Bill and the Fourteenth Amendment, and Senator
EdgarCowan,
a bitter foe of both. When the
latter asked if the “child of the Chinese immigrant in California” or the “child of a
gypsy born in Pennsylvania”
would be a citizen, Senator Conness, with approbation from Senator Trumbull,
answered unhesitatingly in the affirmative: “The proposition before us
… relates … to the children begotten of Chinese parents in California, and it is
proposed to declare that they shall be citizens.We have declared that by law; now it is
proposed to incorporate the same provision in the fundamental instrument of the
nation.I am in favor of doing
so.” Cong. Globe, supra note 70, at 2890–91 (remarks
of Senator Conness).

[102]Societal and Legal Issues Surrounding
Children Born in the United
States to Illegal Parents: Joint Hearing on H.R. 705, H.R.
1363, H.J. Res. 56, H.J.Res.
87, H.J.Res.
88, and H.J. Res. 93 Before the House Subcomm. on Immigration and Claims and
the Subcomm. on the Constitution of the House Comm. on the Judiciary, 104th
Cong. 4 (1995) (remarks of GeraldL.Neuman,
Professor, Columbia University School of Law).See
also supra note 12 and accompanying text.

[103]Slaughter-House Cases, 83 U.S.
(16 Wall.) 36, 73 (1873).While
even dicta from the Supreme Court is highly persuasive as an interpretive gloss
on the Citizenship Clause, we would do well to remember that this was not an
immigration case in any sense.The
controversy before the Court arose when New Orleans
butchers contended that a Louisiana
statute passed as a public health measure violated the Thirteenth and
Fourteenth Amendments by prohibiting the slaughter of any animals within city
limits, thereby allegedly giving a particular company a monopoly on this
trade.The Court upheld the law as
a valid exercise of the state police power.

[105]Slaughter-House Cases, 83 U.S.
(16 Wall.) at 73.Not surprisingly, critics of birthright
citizenship leap upon these remarks in
dicta by Justice Miller
with unrestrained zeal:

The Slaughter-House Cases thus excluded not
only foreign diplomats from those subject to U.S. jurisdiction, but also aliens
generally.The Court restated this
view in the 1874 case Minor v. Happersett….The Court also specifically noted a
distinction between the children of citizens and the children of aliens
“or foreigners.”…Following Minor, the Court
elaborated on the definition of the term “citizen” in United
States v. Cruikshank.The Court described citizens as persons
who “have established or submitted themselves to the dominion of a
government for the promotion of their general welfare and the protection of
their individual as well as their collective rights.” Unlike other
persons, a citizen is one who has actively submitted to the jurisdiction of the
United States.Under this definition, temporary
submission by an alien lacks the permanence and promise of allegiance inherent
in a complete surrender to jurisdiction.Read together, Cruikshankand Minor
illustrate the Court’s willingness to allow the exclusion of children
born to alien parents on U.S.
soil from the operation of the Fourteenth Amendment’s citizenship
clause.Those who submitted only
temporarily to the jurisdiction and protection of the U.S. government were not included
within the parameters of this conception of citizenship, and the Citizenship
Clause did not cover their children.

Stein & Bauer, supra
note 23, at 14.

Much as with The
Slaughter-House Cases, neither Minor
v. Happersett, 88 U.S. 162( 1875) nor United
States v. Cruikshank, 92 U.S. 542 (1976) really were on point.In Minor
v. Happersett, a woman born in Missouri sued when a
state registrar refused to register her as a voter.The Supreme Court held that the
Fourteenth Amendment had not conferred citizenship upon her since she has been
a citizen from birth.The case had
nothing to do with illegal aliens.The Court found that suffrage was not coextensive with state citizenship
at the time the Constitution was adopted.Neither the Constitution nor the Fourteenth Amendment made all citizens
voters.At this time, the Missouri constitution
only extended the suffrage to men and this was held not to be violative of the
Fourteenth Amendment.It is true
that dicta in Minor v. Happersett does
lend itself to a critique of the common law rule on birthright citizenship:

At common law,
with the nomenclature of which the framers of the Constitution were familiar,
it was never doubted that all children born in a country of parents who were
its citizens became citizens themselves upon their birth certificates also.
These were natives or natural-born citizens as distinguished from
foreigners…Some authorities go further and include as citizens children
born within the jurisdiction without reference to the citizenship of their
parents. As to this class, there have been doubts, but never as to the first.

Minor v. Happersett, 88 U.S. at 167–168 (Waite, C.J.).However, the Court went on to say, though critics of birthright
citizenship frequently leave this out, that “[f]or the purposes of this
case, it is not necessary to solve these doubts.It is sufficient for everything we have
now to consider that all children born of citizen parents within the
jurisdiction are themselves citizens.”Id.United States v. Cruikshank also had nothing to do with illegal
aliens and citizenship.This case
concerned a conspiracy indictment for violation of the 1870 Enforcement Act
that sought to protect African-Americans in their attempted exercise of First
and Fifteenth Amendment rights against white intimidation in Reconstruction
Louisiana.The Supreme Court
invalidated the indictments as too vague to suffice as criminal pleading.The discussion of citizenship here does
have a consensual quality to it which critics of birthright citizenship would
likely find congenial if not directly relevant: “Citizens are the members
of the political community to which they belong.They are also the people who compose the
community and who, in their associated capacity, have established or submitted
themselves to the dominion of a government for the promotion of their general
welfare and the protection of their individual as well as their collective
rights.”Cruikshank,92 U.S. at 549.

[106]HowardSutherland,
Citizen Hamdi: The Case Against Birthright Citizenship, The American Conservative, Sep. 27, 2004, at 3.

[107]See Immigration and Nationality Act
§ 301(b), 8 U.S.C. § 1401(b) (conferring citizenship on all native
born Americans in the United
States.)

[110]Id.
at 99.Ironically, it would not be until 40
years after Elk v. Wilkins that the
Indian Citizenship Act of 1924 would provide that “all non-citizen
Indians born within the territorial limits of the United States be, and they
are hereby, declared to be citizens of the United States.”Act of June 2, 1924, c. 233, Pub. L. No. 68-175, 43
Stat. 253; Documents of United States
Indian Policy 218, (Frances Paul Prucha ed., 2d ed., rev. 1990).Even if Congress had not subsequently
overridden Elk v. Wilkins, an
argument can, and indeed has been, made that neither the law nor the logic of
this case should apply “to undocumented populations in the United States
who have never been attributed independent sovereign
characteristics.”Analysis of Proposed Constitutional
Amendment That Would Deny Citizenship to U.S.-born Children of Undocumented
Residents, Memorandum prepared by Wilmer, Cutler & Pickering, to the
National Council of La Raza and the Washington Lawyers Committee for Civil
Rights 24–25 (August 24, 1933) (on file with author).This, after all, goes to the very heart
of the Court’s rationale in Elk v.
Wilkins, namelythat the Indian
tribes were separate nations whose members owed allegiance to them rather than
to the United States:

Indians born
within the territorial limits of the United States, members of, and
owing immediate allegiance to one of the Indian tribes ( an alien, though
dependent, power), although in a geographic sense born in the United States,
are no more “born in the United States and subject to the jurisdiction
thereof,” within the meaning of the first section of the Fourteenth
Amendment, than the children of subjects of any foreign government born within
the domain of that government, or the children born within the United States,
of ambassadors or other public ministers of foreign nations.

112 U.S.
at 102. Elk. v. Wilkinswas not alone in viewing
Native Americans as a separate and distinct class for citizenship
purposes.McKay v. Campbell,
16 F.Cas. 161, 2 Sawyer 118 (D.C. Or.
1871), was “another case in which an opinion was given on the clause in
question, where it was held that an Indian, although born within the United
States is not a citizen because not subject to its jurisdiction.”Hayward,
supra note 17, at 318.

[111] Elk
v. Wilkins, 112 U.S. at 109.In dissent, Mr. Justice Harlan wondered
what reasons would there be not to recognize the citizenship of John Elk who
was so obviously and so willingly and so totally under the jurisdiction of the
nation whose Constitution had no place for him; Justice Harland quoted Senator
Lyman Trumbull on this very point: “It is only those who come completely
within our jurisdiction, who are subject to our laws, that we think of making
citizens; and there can be no objection to the proposition that such persons
should be citizens.”Id.at 118; Cong. Globe, supra note
70, at 2890–93.Interestingly, but perhaps not surprisingly, Mr.JusticeHarlan
also dissented in Plessy v. Ferguson, 163
U.S. 537 (1896), the famous “separate but equal” decision that
would provide the intellectual underpinnings of Jim Crow for the next sixty
years.Both Elk and Plessy served to
define and narrow the boundaries of civic society; both, like DredScott, have been repudiated by the judgment
of history, and both suggest the wisdom of a more expansive national vision.

Indians born
within the territorial limits of the United States, members of, and
owing immediate allegiance to, one of the Indian tribes, (an alien though
dependent power,) although in a geographic sense born in the United States,
are no more “born in the United
States and subject to the jurisdiction
thereof,” within the meaning of the first section of the fourteenth
amendment, than the children of subjects of any foreign government or the
children born within the United
States of ambassadors, or other public
ministers of foreign nations.

[113]
It is worth noting that Elk v. Wilkins
spoke of “children of subjects of any foreign government born within the domain of that government…”
(emphasis added), rather than children born to foreign parents temporarily
residing in the United
States. 112 U.S. at 102.Beyond that, we can look to the plain
language of Justice Gray in Wong Kim Ark,
169 U.S. 649, 682 (1898), where the author of Elk v. Wilkins reminds us that his earlier progeny “concerned
only members of the Indian tribes within the United States, and had no tendency
to deny citizenship to children born in the United States of foreign parents of
Caucasian, African or Mongolian descent, not in the diplomatic service of a
foreign country.”

[114]JohnC.Eastman, Born in the USA?
Rethinking Birthright Citizenship in the Wake of 9/11 (The Federalist Soc’y for L. and Pub. Policy Studies, Wash., D.C.) Mar. 22, 2003, at 10, available at http://www.fed-soc.org/pdf/birthright.pdf.Elk
v. Wilkins advanced what Wong Kim Ark
later rejected, though both were authored by the same Justice Gray, namely that
“there is a difference between territorial jurisdiction on the one hand,
and the more complete, allegiance-obliging jurisdiction codified by the
Fourteenth Amendment on the other.”Brief of Amicus CuriaeClaremont
Institute Center for Constitutional Jurisprudence at 10, Hamdi v. Rumsfeld, 542
U.S. 507 (2004) (No. 03-6696) (Former Attorney
General EdwinMeese
and ProfessorJohnEastman
were the authors).

[115]Societal and Legal Issues Surrounding
Children Born in the United
States to Illegal Parents: Joint Hearing on H.R. 705, H.R.
1363, H.J.Res.
56, H.J.Res.
87, H.J. Res. 88, and H.J.Res.
93 Before the Subcomm. on Immigration and Claims and the Subcomm. on the
Constitution of the House Comm. on the Judiciary, 104th Cong. 74–91
(1995) (testimony of WalterDellinger, Assistant Att’y
Gen., Office of Legal Counsel).In
pertinent part, Dellinger cautioned against an overly broad interpretation of Elk v. Wilkins: “Wilkins cannot be interpreted
to mean that children born in the United States
of aliens are not ‘subject to the jurisdiction’ of the United States
because their parents may owe some allegiance to their own country of
birth.Otherwise, dual nationality
would be prohibited.” Id. at 85.

[116]
The platform was a bit smaller after Justice Gray changed his mind in Wong Kim Ark and narrowed the holding
in Elk v. Wilkins: “The
decision in Elk v. Wilkins concerned
only members of the Indian tribes within the United States, and had no tendency
to deny citizenship to children born in the United States of foreign parents of
Caucasian, African, or Mongolian descent, not in the diplomatic service of a
foreign country.”WongKimArk, 169
U.S.
at 682.

[117]
When Justice Noah Swayne, riding circuit as was common for Supreme Court
Justices to do in the 19th century, pondered the meaning of the Civil Rights
Bill of 1866, he came up with a far different result, one that endorsed the
common law rule: “‘Citizens’ under our constitution and laws
means free inhabitants born within the United States or naturalized under the
laws of congress.We find no
warrant for the opinion that this great principle of the common law has ever
been changed in the United
States.”United
States v. Rhodes,
27 F.Cas. 785, 789 (C.C.D. Ky. 1866)
(No. 16,151) (Swayne, J., on circuit).

[124]Id.
at 701–702.See also Chinese Exclusion Acts, 22
Stat. 58 (1882).Another case
involving the American-born son of Chinese immigrants who had taken up
permanent residence in the United States was In re Look Tin Sing, 21 F. 905, 907 (C.C. Cal. 1884) (Field, Cir.
J.).Here again, the court upheld
the citizenship claim because of the fact that, at the time of his birth, Look
Tin Sing was subject to the exclusive jurisdiction of the United States.

[131]Eastman, Born in the
USA, supra note 114, at
11–14.In dissent, Justice Fuller drew a
distinction between two very different forms of allegiance, “the one,
natural and perpetual; the other, local and temporary.”Wong
Kim Art, 169 U.S.
at 710 (Fuller, J., dissenting).He
argued that the Citizenship Clause of the Fourteenth Amendment applied only to
the former, not the latter.Justice Fuller denounced
the majority rule as “the outcome of the connection in feudalism between
the individual and the soil on which he lived, and the allegiance due was that
of liege men to their liege lord.”Id. at 707.See
also EdwardJ.Erler,
Immigration and Citizenship: Illegal
Immigrants, Social Justice and the Welfare State, inLoyalty Misplaced:
Misdirected Virtue and Social
Disintegration 71, 77 (Gerald Frost ed., 1997) (“The social
contract requires reciprocal consent.Not only must the individual consent to be governed, but he must also be
accepted by the community as a whole.If all persons born within the geographical limits of the United States are to be counted against
citizens—even those whose parents are in the United States illegally—then
this would be tantamount to the conferral of citizenship without the consent of
the whole people.”).

[133]Id.
at 703.See also Afroyim v. Rusk, 387 U.S. 253,
266–67 n.22 (1967), where the Court noted that “some have referred
to this statement as a holding and others have referred to it as obiter dictum,
but which deemed it entitled to great weight regardless of whether it was
dictum or a holding.”Lee, supra
note 32, at 9 n.54 (updated Sep.
13, 2005).

[135]Id.
at 676.Elsewhere in the opinion, Justice Gray said the
same thing: “This sentence of the Fourteenth Amendment is declaratory of
existing rights and affirmative of existing law ….”Id. at
688.Indeed, this was the same
interpretation of the Citizenship Clause advanced by Mr. Justice Field, joined
in dissent by Chief Justice Chase and Justices Swayne and Bradley, in The Slaughter-House Cases: “It
recognizes in express terms, if it does not create, citizens of the United
States, and it makes their citizenship dependent upon the place of their birth
… not upon the constitution or laws of any state or the condition of
their ancestry.”The Slaughter-House Cases, 83 U.S. (16.
Wall.) 36, 95 (1873) (Field, J., dissenting). See
alsosupra note 88.

[136]See Rogers v. Bellei, 401 U.S. 815, 829
(1971) (citizenship clause is “declaratory of existing rights, and affirmative
of existing law, so far as the qualifications of being born in the United States, being naturalized in the United
States and being subject to its jurisdiction are concerned.”); Kennedy v.
Mendoza- Martinez,372 U.S. 144, 159
n.10 (1963) (confirming that the citizenship clause “is to be interpreted
in light of pre-existing common-law principles governing citizenship.”); Plyler
v. Doe, 457 U.S. 202, 211 n.10 (1982) (adopting Wong Kim Ark’s geographic interpretation of jurisdiction for
purposes of the Citizenship Clause); INS
v. Rios-Pineda,471 U.S. 444, 446
(1985) (in a habeas petition brought by deportable aliens, the Supreme Court
took note of the fact that respondent had given birth to a child, “who,
born in the United States, was a citizen of this country.”); Morrison v.
California, 291 U.S. 83, 85 (1933)
(noting that, while persons of Japanese ancestry were racially precluded from
naturalization, a person of Japanese heritage remains a US citizen if born
within the United States, citing Wong Kim
Ark for authority); Perkins v. Elg, 307
U.S. 325, 329 (1939) (child born in Brooklyn, New York, but taken by her
parents to Sweden while in her infancy was not an illegal alien and could not
be deported); Matter of Cantu,17 I.
& N. Dec. 190 (BIA 1978) (child born in Texas along the international
boundary with Mexico before the United States transferred the territory back to
Mexico became an American citizen at birth).

[137] Weber
v. Aetna Casualty & Surety,406 U.S.
164, 175 (1972) (“imposing disabilities on the illegitimate child is
contrary to the basic concept of our system that legal burdens should bear some
relationship to individual responsibility or wrongdoing.”).

[138]
Plyler v. Doe, 457 U.S. 202 (1982) (invalidated Texas law excluding children of undocumented
aliens from public schools).

[139]Lewis v. Thompson,252 F.3d. 567 (2d Cir. 2001).Interestingly, the Second Circuit panel
found that denial of prenatal care did not violate the equal protection
clause.The court accepted the
citizenship claim of the children as a given, without challenging or
questioning it in any way.

[142]Lee,supra note 17, at 10–15 (updated Nov. 4, 2005). See also Schuck & Smith, supra note 12, at 116–140.There is even a name or label derisively
attached to such children.Critics
dismiss them as “anchor babies”.

[145]
In 1995, RaulYzaguirre, the President of the
National Council of La Raza, made this very point when testifying before the
House Immigration Subcommittee in opposition to H.R. 1363, the Citizenship
Reform Act of 1995.Introduced by Congressman BrianBilbray of California,
this would have redefined “subject to the jurisdiction of the United States”
to preclude children other than those born to lawful permanent residents.Mr.Yzaguirre
did not think this was such a good idea: “H.R.
1363 is so narrowly drawn that children of many persons who are lawfully
present in the United States
would be denied citizenship.There
are hundreds of thousands of persons legally here, including refugees and
asylees, those in temporary protected status, temporary workers, and parolees
who are not now permanent residents … [I]t fails to recognize the fact
that many, and perhaps most, of these people will eventually obtain permanent
resident, and even citizenship status.”Proposals
to Deny Birthright Citizenship to Children of Undocumented Parents Before the
Subcomm. on Immigration and Claims and on the Constitution, House Comm. on the
Judiciary, 104th Cong. 10 (1995) (statement of RaulYzaguirre,
President, National Council of La Raza).

[146]
Citizenship Reform Act of 2005, H.R. 698, 109th Cong. § 3 (introduced by Rep. NathanDeal
of Georgia),
http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.698:.Since marriage is a matter of state not
federal law, and since there are 8 states which do recognize common law
marriage, is it not a concern on equal protection grounds for Congress to
condition the validity or infirmity of a citizenship claim on the kind of
marriage that the concerned parents have elected to govern their own
relationship?One wonders.Under Congressman
Deal’s definition, in a
state, like Texas,
whose family code recognizes common law marriage, you would have the rather
incongruous situation of a child being born out of wedlock for citizenship
purposes but in wedlock for virtually everything else. Does this raise any 10th Amendment
concerns?Not one to be
discouraged, Congressman Deal
introduced his bill on more than one occasion.See
also Citizenship Reform Act of 2003, H.R. 1567, 108th Cong., § 3, http://thomas.loc.gov/cgi-bin/query/z?c108:H.R.1567:.

[148]
8 U.S.C. § 1409 (2005).How a
child can be a citizen if born in London but not in Seattle requires a bit of
an explanation: “Without conforming amendments to Section 309 of the INA,
this proposal would mean that persons born abroad out of wedlock to a US
citizen father and an alien mother would have a process by which they could be
deemed US citizens at birth and, paradoxically, persons born in the U.S. of
similar parentage would not.These
proposals are all therefore arguably unconstitutional on due process/equal protection
grounds as well as Citizenship Clause grounds.”Lee,
supra note 32, at 14 (updated Sep. 13, 2005).

[151]See,
e.g., H.R. 190, 107th Cong.
§ 1 (2001); H.R. 319, 106th Cong. § 1 (1999); H.R. 346, 105th Cong.
§ 1(1997); H.R. 2162, 104th Cong.
§ 701 (2001); H.R. 4934, 103d
Cong. § 701 (1994); H.R. 3862, 103d
Cong. § 401 (1994); S. 1351, 103d Cong. § 1001 (1993).This last proposal, the only one coming
out of the Senate, is the brainchild of current Senate Minority Leader Harry
Reid of Nevada,
a fact noteworthy only because of its author’s general reputation as a
liberal on most other domestic issues.Criticism of birthright citizenship is hardly an accurate predictor of
where someone stands on other major national controversies.Moreover, the stated purpose of S. 1351,
the Immigration Stabilization Act of 1993, was to “curb criminal activity
by aliens, defend against acts of international terrorism, protect American
workers from unfair labor competition, and relieve pressure on public services
by strengthening border security and stabilizing immigration into the United States.”What does a restriction on birthright
citizenship have to do with any of these laudable objectives?

[158]See Lee, supra note 32, at 15–16 (updated Sep. 13, 2005) (“One
could argue that Congress has no power to define ‘subject to the
jurisdiction’ and the terms of citizenship in a manner contrary to the
Court’s understanding of the Fourteenth Amendment as expressed in Wong Kim Ark and Elk, particularly since that understanding includes a holding that
the Fourteenth Amendment did not confer on Congress a right to restrict the
effect of birth on citizenship as declared by the Constitution.”).

[159]
Some folks want to have it both ways.Congressman EltonGallegly believes that Congress
alone can rewrite the definition of citizenship (see supra note 153 and accompanying text) and also that the
Fourteenth Amendment must be fundamentally altered.See
H.R.J. Res. 64, 104th Cong. (1995).Now, that is a prudent legislator who takes no chances.Interestingly, Congressman
Gallegly both in 1995 and, prior
to that, in 1991, see H.R.J. Res.
357, 102d Cong. (1991), explicitly called for repeal of the Citizenship Clause,
something that many constitutional amendments did not require.

[162]Id.Interestingly, Congressman
Paul says that the child would not
derive citizenship “solely” by reason of birth.Why is this adjective there?If the child does not get citizenship,
is there some other weight attached to the fact of birth in the United States?Will some significance short of
citizenship, such as permanent resident status, attach?Probably not, but the same effect could
easily be achieved without the inclusion of “solely” in the
formula.Its presence may either be
a drafting or stylistic matter, which is probably the case, or an indication
that, while Congressman Paul was unwilling to go as far as citizenship, he had
something else in mind.Interestingly,
Congressman Paul
does not require the parents to be married.There is no distinction between children
born in and out of wedlock.

[171] Engaging
the Nation to Fight for Our Right to Control Entry Act (“ENFORCE
Act”), S. 2117, 109th Cong. (introduced Dec. 15, 2005, by Sen.
JamesInhofe-R-OK).Title V of the ENFORCE Act is the
Citizenship Reform Act of 2005.Sen.Inhofe would amend section 301 of the Immigration and Nationality
Act, 8 U.S.C. § 1401, to provide that a child born in the United States
would only be subject to the jurisdiction of the United States if he or she was
born to parents one of whom was either a “national” of the United
States or a lawful permanent resident who “maintains his or her residence
in the United States.” Id.
§ 503.Several things are of
interest here.First, clearly Sen. Inhofe believes that
birthright citizenship is an inducement to illegal migration.Second, it is rather odd that he uses the
term “national” of the United States rather than
“citizen”.“National of the United States” is a term of art defined at
section 101(a)(22) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(22), to mean either a citizen or “a person who, though not a
citizen of the United States still owes permanent allegiance to the United
States.”Since there are very
few nationals left anymore, now that we have shed the trappings of our imperial
past, it would seem that “citizen” would have done the job just as
well.Finally, what if the
permanent resident “abandons” such status?Does their child find themselves on the
outside of the charmed circle looking in?Seesupra notes 155–56 and accompanying text.

[172]The Columbia
World of Quotations No. 21835 (Robert Andrews et al. eds. 1996), http://www.bartleby.com/66/35/21835.html.This speech is believed to have been
delivered on November 22,
1641, but some historians question the exact date.It was a defense of the Episcopal system
of nominating bishops in the Church of England against the Root and Branch
petition that sought to abolish such practice.Lucius Cary Falkland, the Second
Viscount, was born in 1610 and died in 1643.